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Rivers, Jay v Burleigh Marr Distributions Pty Ltd and Ors[2019] QIRC 70

Rivers, Jay v Burleigh Marr Distributions Pty Ltd and Ors[2019] QIRC 70

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rivers, Jay v Burleigh Marr Distributions Pty Ltd and Ors [2019] QIRC 070

PARTIES: 

Rivers, Jay

(Applicant)

v

Burleigh Marr Distributions Pty Ltd

(First Respondent)

v

Brendan Magill

(Second Respondent)

v

Brett Abdul

(Third Respondent)

v

Luke Mitchell

(Fourth Respondent)

CASE NO:

AD/2017/55

PROCEEDING:

Referral of Complaint

DELIVERED ON:

17 May 2019

HEARING DATES:

10, 11, 12 September 2018 and 17 January 2019

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDER:

Application dismissed

CATCHWORDS:

CASES:

APPEARANCES:

ANTI-DISCRIMINATION LAW – Applicant's employment terminated because of an impairment. Complaint of direct discrimination and of victimisation. Exemptions relied on by the respondent. Medical evidence supporting a conclusion that applicant did not meet the genuine occupational requirements questioned.

Attrill v Department of Corrective Services

Metro South Hospital and Health Service & Leighton v Luthje

M Heffernan of Worker Law for the applicant

A Herbert of Counsel instructed by Agnew Legal for the respondents

Decision

Introduction

  1. [1]
    The applicant lodged a complaint in the Anti-Discrimination Commission Queensland on 24 August 2017. On 18 September 2017, the complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (the Act). The complaint has been referred to the Queensland Industrial Relations Commission (the Commission) pursuant to s 166(1)(a) and s 276(2)(a) of the Act.
  1. [2]
    The Referral Notice filed with the Commission on 15 November 2017, relevantly states that the "complaint related to or includes work or the work-related area" and was treated as indicating "Trade Union Activity, Impairment Discrimination and Victimisation in the area of work as per sections 7(h), 7(k), 10, 11, 15 and 129".

Respondents

  1. [3]
    During the course of the proceedings leave was granted to the applicant to remove Mr Magill and Mr Abdul from the list of respondents to the application. In the amended form therefore, the first respondent to the applicant remains unchanged as Burleigh Marr Distributions Pty Ltd, while Mr Mitchell assumes the status of the second respondent.

Legislative Scheme

  1. [4]
    Part 2 of Chapter 2 of the Act identifies "Prohibited grounds of discrimination". Section 7 prohibits discrimination on the basis of various defined "attributes" including the attributes, in s 7(h) of the Act, of "impairment", and in s 7(k) of "trade union activity". Section 8 of the Act refers to the meaning of discrimination on the basis of an attribute.
  1. [5]
    Part 3 of Chapter 2 of the Act identifies "Prohibited types of discrimination". Section 9 prohibits "direct" and "indirect" discrimination, while sections 10 and 11 define the meaning of direct and indirect discrimination.
  1. [6]
    Part 4 of Chapter 2 of the Act identifies "Areas of activity in which discrimination is prohibited". The areas of activity are set out in Division 2 through to Division 11. Division 1, at s 12, explains the structure of Part 4 by stating that this Part "specifies the areas of activity in which discrimination is prohibited and the exemptions that apply in relation to those areas. The explanation points out that Part 5 of Chapter 2 of the Act "specifies general exemptions" that apply to all the areas of activity mentioned in Part 4.
  1. [7]
    Division 2 of Part 4 deals with "Work and work related areas". Section 15 identifies types of discrimination in the area of work. Section 15(c) provides that a person must not discriminate in dismissing a worker, while s 15(f) provides that a person must not discriminate by treating a worker unfavourably in any way in connection with work. Exemptions for discrimination in work and work-related areas are set out in sections 25 to 36. Section 24 of the Act explains that it "is not unlawful to discriminate in the work or work-related area if an exemption in sections 25 to 36 applies".
  1. [8]
    Section 25 provides that a "person may impose genuine occupational requirements for a position". Sections 34, 35 and 36 deal with the protected attribute of "impairment":

34Special terms if job capacity is restricted by impairment

A person may fix reasonable terms in relation to the holder or prospective holder of a position who, because of an impairment—

  1. (a)
    has a restricted capacity to do work genuinely and reasonably required for the position; or
  1. (b)
    requires special conditions in order to be able to do the work.

35Special services or facilities required

  1. (1)
    It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if—
  1. (a)
    the other person would require special services or facilities; and
  1. (b)
    the supply of special services or facilities would impose unjustifiable hardship on the first person.
 
  1. (2)
    Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5.

36Circumstances of impairment

  1. (1)
    It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if the circumstances of the impairment would impose unjustifiable hardship on the first person.
  1. (2)
    Whether the circumstances of the impairment would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example—
  1. (a)
    the nature of the impairment; and
  1. (b)
    the nature of the work or partnership
  1. [9]
    In Attrill v Department of Corrective Services,[1] a QCAT appeal bench dealt with the operation of the exemption provisions in the following terms:

[13]  Exemptions for discrimination in work and work-related areas are specifically provided for in Part 4 Subdivision 2. General exemptions for discrimination are provided for in Part 5. It is not unlawful to discriminate in work or work related area if an exemption in ss 25 to 36 or Part 5 applies.

[14] In Part 4, s 25 provides that a person may impose genuine occupational requirements for a position. Section 34 provides that a person may fix reasonable terms in relation to an employee or prospective employee who, because of impairment, has a restricted capacity to do work genuinely and reasonably required for the position. Section 35 provides for lawful discrimination by a person if another person would require special services or facilities, and supplying them would impose unjustifiable hardship on the first person. Section 36 provides for lawful discrimination on the basis of impairment if the circumstances of the impairment would impose unjustifiable hardship. Whether the circumstances of the impairment would impose unjustifiable hardship depends upon all of the relevant circumstances including the nature of the impairment, and the nature of the work.

  1. [10]
    The definition of "impairment" included in a schedule to the Act provides:

impairment, in relation to a person, means—

  1. (a)
    the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
  1. (b)
    the malfunction, malformation or disfigurement of a part of the person’s body; or
  1. (c)
    a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
  1. (d)
    a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
  1. (e)
    the presence in the body of organisms capable of causing illness or disease; or
  1. (f)
    reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;

whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that—

  1. (g)
    presently exists; or
  1. (h)
    previously existed but no longer exists.
  1. [11]
    Part 5 of Chapter 2 of the Act "specifies general exemptions" that apply to all the areas of activity mentioned in Part 4 (Division 2 through to Division 11). Section 103 of the Act explains that it "is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in sections 104 to 113 applies". Section 108 of the Act provides:

108Workplace health and safety

A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.

  1. [12]
    Part 4 of Chapter 5 of the Act prohibits "victimisation". The meaning of "victimisation" is set out in s 130 of the Act:

130Meaning of victimisation

  1. (1)
    Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
  1. (a)
    because the complainant, or a person associated with, or related to, the complainant—
  1. (i)
    refused to do an act that would amount to a contravention of the Act; or
  1. (ii)
    in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
  1. (iii)
    is, has been, or intends to be, involved in a proceeding under the Act against any person; or
  1. (b)
    because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
 
  1. (2)
    In this section, a reference to involvement in a proceeding under the Act includes—
  1. (a)
    making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  1. (b)
    involvement in a prosecution for an offence against the Act; and
  1. (c)
    supplying information and producing documents to a person who is performing a function under the Act; and
  1. (d)
    appearing as a witness in a proceeding under the Act
  1. [13]
    Section 10 of the Act defines direct discrimination in the following terms:

10Meaning of direct discrimination

  1. (1)
     Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
  1. [14]
    The effect of the legislative scheme is that for the applicant to establish direct discrimination, he needs to show that he was treated less favourably than another person without the protected attribute in circumstances that are the same or not materially different.
  1. [15]
    The effect of sections 204 and 206 of the Act is that it is for the applicant to prove, on the balance of probabilities, that the respondent contravened the Act, except where the respondents rely on an exemption where the respondents must prove on the balance of probabilities that the exemption sought to be relied on, applied.

Respondents' concessions

  1. [16]
    The respondents accepted that the matters about which the applicant complained occurred at the place of work of Burleigh Marr Distributions Pty Ltd trading as Bidfood Sunshine Coast at 14 Hoopers Road, Kunda Park, Queensland. It was also accepted that the applicant had protected attributes as follows:
  1. (a)
    The applicant was a member and union delegate of the National Union of Workers; and
  2. (b)
    The applicant did engage in trade union activity whilst employed by the first respondent within the meaning of section 7 of the Act; and
  3. (c)
    The applicant had an impairment within the meaning of section 7 of the Act whilst employed by the first respondent.
  1. [17]
    The respondents agreed that the applicant's employment was terminated by reason of an impairment described as an "anxiety" condition.

Witnesses

  1. [18]
    Witnesses for the applicant were as follows:
  • Mr Jay Rivers (applicant);
  • Mr Matthew Evans (co-worker);
  • Dr Regina Greenwood (general practitioner);
  • Mr Tim Weir (psychologist)
  1. [19]
    Witnesses for the respondents were as follows:
  • Mr Brendan Magill (Sales Manager);
  • Mr Brett Abdul (Warehouse Supervisor);
  • Mr Luke Mitchell (General Manager);
  • Dr Graeme Edwards (occupational physician);
  • Mr Justin Hawker (Operations Manager);
  • Ms Helen Weber (Workplace Health and Safety Management Solutions Pty Ltd).

Short chronology

  1. [20]
    The applicant commenced work with the first respondent on 4 August 2013. He became a delegate for the National Union of Workers (NUW) around February 2016.
  1. [21]
    It was the applicant's case that soon after he took on the delegate's role, he was subject to a pattern of discriminatory and vindictive management behaviour which he attributed to the manner in which he conducted his role as a delegate for the NUW.
  1. [22]
    On 4 January 2017, the applicant was informed that his employer was investigating allegations of misconduct on his part. The allegations related to an incident with a co-worker that occurred on 27 October 2017, and to deficiencies in the applicant's attendance record.
  1. [23]
    The applicant was told in a meeting convened on 4 January 2017 that an investigation would be commenced and he was asked to attend an interview the following day. However, at the end of the meeting the applicant left the workplace and ultimately never returned.
  1. [24]
    After the 4 January 2017 meeting, the applicant attended on his general practitioner, Dr Greenwood, who issued a work capacity certificate saying that the applicant had no capacity for any type of work until 4 March 2017. Similar certificates were issued in March and May 2017 continuing the incapacity for work until at least 4 June 2017.
  1. [25]
    The applicant lodged a WorkCover claim on 5 January 2017 in respect to a psychological injury caused by on-going victimisation in the workplace. When WorkCover rejected the claim on 16 January 2017, the applicant sought a review of the decision. On 24 March 2017 the workers compensation regulator declined to reverse WorkCover's decision.
  1. [26]
    The applicant first attended on Mr Weir on 1 February 2017. Mr Weir entered a diagnosis of an adjustment disorder with mixed features of anxiety and depression. The last consultation with Mr Weir took place on 20 July 2017.
  1. [27]
    On 8 March 2017, Mr Mitchell asked Dr Edwards to assess the applicant and to provide a report on the applicant's diagnosis and prognosis as it pertains to his ability to perform his position. Mr Mitchell's communication asked Dr Edwards in the compilation of his report to answer a number of questions. On the same day, the applicant was directed by Mr Mitchell to complete a medical assessment.
  1. [28]
    On 9 March 2017, Dr Edwards asked Mr Mitchell for more information relating to a complaint of bullying that the applicant had made in late 2015 and early 2016 against his supervisor, Mr Fellows. He also requested information associated with the applicant's WorkCover claim that had been rejected by WorkCover on 1 March 2017. The request for information concerning the WorkCover claim was referred to Ms Helen Weber and she was asked to supply the information to Dr Edwards.
  1. [29]
    On 13 March 2017, the applicant informed Mr Mitchell that he was exercising his right to nominate his own doctor and said that he would not attend the assessment by Dr Edwards. Instead, the applicant authorised the employer to get the required information from the applicant's general practitioner and treating psychologist.
  1. [30]
    In these circumstances, the employer, by email dated 14 March 2017, moved to cancel the assessment that it had arranged to be undertaken by Dr Edwards.
  1. [31]
    Mr Mitchell informed the applicant on 15 March 2017 that the employer would contact Dr Greenwood "to seek that she answer the questions concerning your ability to perform the inherent requirements of your position".
  1. [32]
    The employer subsequently elected, on 20 March 2017, to retain Dr Edwards to ask questions and obtain further information as permitted by clause 7.8.1 of the enterprise agreement.
  1. [33]
    On 26 April 2017, Dr Edwards provided his report to the employer. On receipt of the report the employer asked Dr Edwards to address four questions by way of clarification. Dr Edwards' clarification was provided later that same day. Subsequently, but on the same date, Mr Mitchell forwarded correspondence to the applicant, provided him with a copy of Dr Edwards' report, and informed him that the continuation of his employment was under review. The applicant was invited to contribute to the review.
  1. [34]
    On 10 May 2017, Fair Work Claims corresponded with the employer in response to the employer request for information about the applicant's continuing employment.
  1. [35]
    A reference in the Fair Work Claims correspondence to a new WorkCover claim caused the employer to request Workplace Health and Management Solutions Pty Ltd to attend the Sunshine Coast work location and undertake some form of investigation which focussed on the applicant's incident with Mr Evans. A report prepared by Ms Weber on 30 May 2017 is in the evidence as Exhibit 25.

  Termination of employment

  1. [36]
    The applicant's services were terminated on 26 June 2017. It was not in dispute that the applicant's employment was terminated by reason of an impairment and that in so doing the employer relied on the medical assessment prepared by Dr Edwards. The assessment concluded that the applicant was precluded from indefinitely returning to his workplace and prevented him from performing any work for his employer at that place.
  1. [37]
    In his correspondence effecting the termination (Exhibit 33), Mr Mitchell relied on Dr Edwards' report and referred to the earlier correspondence dated 26 April 2017 when the applicant was put on notice that his employer was considering terminating his employment. Mr Mitchell concluded:

The current medical evidence provides that you cannot perform the inherent requirements of the position and Bidfood Sunshine Coast cannot supply any special service or facility that would allow you to safely perform your position as a storeperson. Accordingly Bidfood Sunshine Coast terminates your employment.

  1. [38]
    The circumstances giving rise to the decision to terminate the applicant's employment were canvassed during the evidence of Mr Mitchell. On Mr Mitchell's evidence, a doubt about the applicant's return to work was emphasised on receipt of a medical certificate dated 1 March 2017 (Exhibit 11). Mr Mitchell took advice and determined to direct the applicant to complete a medical assessment to ascertain his fitness for work.
  1. [39]
    Before terminating the employment, the employer had written to the applicant on 26 April 2017, told him that his continuation in employment was being considered, and asked him to supply information as part of the consideration. This correspondence noted that the applicant had been incapacitated for work between 4 January 2017 and until at least 4 May 2017 and noted the conclusions of Dr Edwards 24 April 2017 report. The correspondence then informed the applicant that further advice had been received from Dr Edwards to the following effect:
  • The applicant's current condition precluded him from performing the inherent requirements of his position;
  • The applicant's prognosis relative to a return to work was poor;
  • Any return to work would exacerbate the applicant's condition; and
  • That the employer could not supply any special services or facilities to make any adjustment that would allow the applicant to perform his pre-illness duties.
  1. [40]
    On 10 May 2017, Fair Work Claims responded to the 26 April 2017 correspondence on behalf of the applicant (Exhibit 9). The correspondence included the following propositions, or propositions to this effect:
  • That the applicant had obtained a further medical certificate dated 4 May 2017;
  • Claimed, for stated reasons, that Dr Edwards report could not be relied on and was deficient or flawed in a number of respects;
  • Stated that the applicant denied the allegations made against him in the letter written by Magill on 4 January 2017;
  • Claimed that the applicant had been subject to less favourable treatment for two years;
  • Particularised the less favourable treatment;
  • Claimed that the applicant's illness was caused by less favourable treatment which occurred because of his trade union status;
  • Claimed that the employer was motivated to terminate the applicant's employment because he had exercised workplace rights and because of his union activities;
  • Foreshadowed the making of a complaint under the Anti-Discrimination Act alleging direct discrimination on the part of the employer and its management staff;
  • Stated that if the applicant's employment were terminated, the applicant would treat the termination as an act of victimisation;
  • Alleged that the decision to terminate the applicant's employment had already been made and stated that any termination would be challenged under unfair dismissal laws;
  • Informed the employer that the applicant had submitted a further WorkCover claim on 5 May 2017 in relation to an aggravation of an existing injury.
  1. [41]
    The medical certificate provided by Fair Work Claims disclosed that the applicant had no functional capacity for any type of work; that it was unknown when he might return to work on some form of duties; and that his estimated return to work on full duties was also unknown. While a review date of 4 June 2017 was included in the certificate, there was no evidence that any further certificate had been provided before the termination of the applicant's services.
  1. [42]
    While the Fair Work Claims correspondence stated that the applicant was opposed to the termination of his employment and proposed a series of actions in the form of remedies that might allow a return to work, it but did not include any competing or contradictory medical evidence relating to the applicant's fitness for work.
  1. [43]
    Rather, the correspondence complained extensively about Dr Edwards report, his methodology, and his conclusions.  The difficulty for the applicant however is that this form of attack on the probity and veracity of Dr Edwards' report is no substitute for qualified medical opinions which offer a different prognosis on the applicant's condition, and more positive advice in terms of the applicant's capacity to return to work.
  1. [44]
    Mr Mitchell's evidence was directed at similar conclusions. His evidence was to the effect that because the Fair Work Claims correspondence did not provide any "real response against the examination", he ultimately elected to terminate the applicant's employment. He said that the correspondence did not rebut the medical opinion provided by Dr Edwards. He said that he was not provided with any contrary medical advice. He also took the view that the correspondence did not include any viable proposition supporting a return to work by the applicant with adjustments.

Applicant's claims

  1. [45]
    The applicant has alleged that he has been discriminated against in the course of his employment and that he has been victimised because of his intention to bring a complaint under the Act. In more particular terms, it is alleged that the respondents breached the Act by: 
  1. (a)
    Terminating the applicant's employment because of his impairment in circumstances where the respondents cannot rely on exemptions (direct discrimination);
  2. (b)
    Exemptions were not available to the respondent because of deficiencies in the process employed by the respondents to determine if the applicant could not perform the inherent requirement of his position;
  3. (c)
    Terminating the applicant's employment because of his trade union activity (direct discrimination);
  4. (d)
    Terminating the applicant's employment because he had alleged in correspondence dated 10 May 2017 that any termination of his employment would amount to a contravention of the Act (victimisation);
  5. (e)
    Imposing a term on the applicant that any return to work had to be accommodated at the Sunshine Coast workplace in circumstances where the applicant's impairment precluded his return to that workplace, where persons without an impairment could return to that workplace, and where it was not reasonable for the respondents to impose the term (indirect discrimination).

Respondents' defence

  1. [46]
    The respondents defended the applicant's claims as follows: 
  1. (a)
    While the applicant's employment was terminated because of his impairment, the respondents were entitled to rely on exemptions provided by sections 25, 35, 36, and 108 of the Act;
  2. (b)
    Special services and facilities were considered by the respondents and Dr Edwards, and the conclusion that special services and facilities were not available was reasonably open on all the relevant facts and circumstances, including Dr Greenwood's opinion; 
  3. (c)
    The applicant's employment was not terminated because of his trade union activity or for reasons which included that reason;
  4. (d)
    The applicant's employment was not terminated because he had alleged a contravention of the act, or for reasons including that reason;
  5. (e)
    The applicant was precluded from bringing a claim of indirect discrimination in circumstances where no such claim was included in the complaint made to the Anti-Discrimination Commission, no such claim was included in the applicant's statement of facts and contentions, and no such claim was advanced during the proceedings.

Process deficiencies

  1. [47]
    While Dr Edwards' report had concluded that the applicant's impairment prevented him from returning to the workplace, and prevented him from performing any work for his employer at the workplace, in the proceedings the applicant claimed that for a variety of reasons, the respondents should not be permitted to rely on Dr Edwards' report. The applicant questioned Dr Edwards' impartiality and criticised the methodology he employed in arriving at his conclusions. In the applicant's view, Dr Edwards' opinion was inherently unreliable and could not have been relied on to satisfy the s 25 exemption, nor to justify the termination of the applicant's employment. In more particular terms, the applicant alleged that:
  1. (a)
    Dr Edwards acted as an agent of the employer and was not independent of the employer. He did not bring an objective mind to the formulation of his opinion;
  2. (b)
    Dr Edwards failed to adequately consult with Dr Greenwood and Mr Weir in terms of gaining an understanding of the applicant's condition or in surfacing return to work options, including the provision of special services or facilities;
  3. (c)
    In failing to adequately consult with the applicant's treating medical team, the employer did not comply with the enterprise agreement;
  4. (d)
    Dr Edwards' interaction with the applicant was limited to a telephone conversation in which he could not have adequately assessed the applicant's condition, and where he pre-empted the outcome of the discussion in his introduction;
  5. (e)
    Dr Edwards and the respondents failed to adequately consider special services or facilities as an alternative to termination of employment.

Medical assessment

  1. [48]
    After the applicant was informed on 4 January 2017 that an investigation would be held into his conduct relating to the incident with Mr Evans, he attended on his general practitioner, Dr Greenwood, who issued a work capacity certificate saying that the applicant had no capacity for any type of work until 4 March 2017.
  1. [49]
    On 5 January 2015, the applicant lodged a WorkCover claim in respect to a psychological injury which he said was caused by on-going victimisation in the workplace. Dr Greenwood issued a further certificate on 1 March 2018 which disclosed that the applicant required treatment between 4 March 2017 and 4 May 2017, and that the applicant had no functional capacity for any type of work before the next review date of 4 May 2017. 
  1. [50]
    When Mr Mitchell was provided with a copy of the 1 March 2017 certificate, he determined to direct the applicant to attend a medical examination with Dr Edwards. The direction was contained in correspondence sent to the applicant on 8 March 2017 (Exhibit 3). In this correspondence it was noted that the applicant had not worked since 3 January 2017 and that his current medical certificate confirmed his incapacity for work until 4 May 2017. The correspondence then stated:

Bidfood Sunshine Coast requires an assessment of your ability to perform the inherent requirements of your position. Therefore Bidfood Sunshine Coast requests that you attend a medical specialist at Bidfood Sunshine Coast's expense to gain a current diagnosis and prognosis relating to your ability to perform the inherent requirements of your position.

  1. [51]
    The 8 March 2017 correspondence also stated that the applicant was "directed to sign and return" a medical information release consent form. The form authorised any treating practitioner to release any information to the applicant's employer or the employer's agent. The form also asked the applicant to confirm that he understood that the information released would be used to evaluate the duties which the applicant could perform as part of his employment, the estimated duration of his illness or injury, and his prospects for rehabilitation. The correspondence also stated that what was sought were reasonable and lawful directions and that if the applicant did not comply with any of the directions, the employer would commence a "disciplinary investigation".
  1. [52]
    The same correspondence informed the applicant that the employer would send the applicant's position description and full task analysis to Dr Edwards. An apparent failure for a task analysis to be provided attracted criticism during the proceedings. Mr Mitchell's evidence was that he could not remember if the task analysis had been provided or not, but he said the position description provided, in part, similar information. For my part, very little turns on the issue given the nature of the applicant's injury. Had the injury been a physical injury, this information would have been essential, but its usefulness would have been limited in the assessment of the applicant's psychological injury.
  1. [53]
    On 8 March 2017, Mr Mitchell also wrote to Dr Edwards and requested that he complete an assessment on the applicant. Mr Mitchell said that the employer sought a report on the applicant's "current prognosis and diagnosis as it pertains to his ability to perform his position". Mr Mitchell also asked Dr Edwards, in providing his report, to answer a series of questions (Exhibit 30):
  1. (a)
    The precise nature Mr Rivers’ medical condition/s as it/they pertain to his ability to perform the inherent requirements of his position; and
  2. (b)
    Whether Mr Rivers can currently perform the inherent requirements of his pre-injury position?
  3. (c)
    Whether he would be at risk of psychological or psychiatric injury (or aggravation of an existing condition) if he resumed his full duties (with specific reference to the supplied position description and task analysis); and
  4. (d)
    Mr Rivers’ prognosis, including when it is likely that he will be able to resume work and whether he would be at risk of re-injuring himself if he resumed duties with Bidfood Sunshine Coast given that he will need to work under the direction of Bidfood Management; and
  5. (e)
    Whether Mr Rivers is currently on any medication that could affect his ability to safely perform the inherent requirements of his position. If so what are the side effects of that medication; and
  6. (f)
    If Mr Rivers is unable to either perform his position whether Bidfood Sunshine Coast can supply any special services or facilities or make any adjustment to his position that would allow him to perform his duties.
  1. [54]
    On 13 March 2017, the applicant informed Mr Mitchell that he was exercising his right pursuant to clause 7.8.1 of the enterprise agreement to nominate his own doctor and said that he would not attend the assessment by Dr Edwards. He provided the contact details for Dr Greenwood and Mr Weir and said, in effect, that he authorised them to provide information to his employer. Clause 7.8.1 of the enterprise agreement provides as follows:

Employee to attend Medical Examination

If the Employer contends that the Employee is unable to safely perform the inherent requirements for any reason (including that the Employee is affected by drugs or alcohol or the Employee is or has been injured) then the Employer can require that the Employee take a medical examination in the Employer’s time and the Employer will meet the expense of that examination and pay for the time involved in such an examination.  For the purposes of this clause, an Employee can nominate a doctor and the Employer will use that nominated doctor to supply the required medical information provided that the doctor is appropriately qualified and satisfactorily answers the Employer’s questions.

  1. [55]
    In response to the applicant's election to nominate his own doctor, Mr Mitchell took two actions:
  1. (i)
    He caused an email to be sent to Dr Edwards on 14 March 2017 cancelling the arrangement with Dr Edwards; and
  2. (ii)
    He informed the applicant on 15 March 2017 that the employer would contact Dr Greenwood "to seek that she answer the questions concerning your ability to perform the inherent requirements of your position".
  1. [56]
    Subsequently, in an email dated 20 March 2017 (Exhibit 8), the respondents elected to appoint Dr Edwards as their representative for the purpose of liaising with the applicant's nominated medical team and for the purpose of asking questions and acquiring the necessary information pursuant to the enterprise agreement provisions.
  1. [57]
    In the same email, Dr Edwards was provided with the applicant's consent form, asked to contact Dr Greenwood and Mr Weir, and to prepare a report consistent with the request made of him on 8 March 2017. In this communication, Dr Edwards was informed that if Dr Greenwood or Mr Weir could not satisfactorily answer his questions, the employer was entitled to direct the applicant to attend an appointment with Dr Edwards.
  1. [58]
    Consistent with the instructions given to him, Dr Edwards sent a facsimile to both Dr Greenwood and Mr Weir and subsequently spoke with them over the telephone. In the facsimile, Dr Edwards said that he was assisting the employer understand the nature of the applicant's health status and prognosis, and assisting in the assessment of risk to the applicant and his employer. At Mr Weir's invitation, Dr Edwards also spoke to the applicant.
  1. [59]
    Dr Edwards said that he spoke to the applicant over the telephone and that the conversation extended over 45 minutes. The applicant confirmed the discussion but he complained that when he spoke to Dr Edwards, he was told at the start of the conversation that Dr Edwards had already come to his decision. Dr Edwards however denied making any statement to this effect.
  1. [60]
    Dr Edwards provided his report (Exhibit 10) to the employer on 24 April 2017. The report concluded that:
  • The applicant suffered from a "specific phobic anxiety" which was associated with an irreconcilable breakdown in the employer-employee relationship; and
  • It was in the best interests of the applicant's health and wellbeing that the employment relationship should be severed as soon as reasonably practical.
  1. [61]
    Following receipt of the report, Dr Edwards was asked by the employer to clarify his report in four particular respects:
  • Whether the applicant could perform the inherent requirements of his job;
  • Whether the return to work prognosis was poor;
  • Whether a return to work would exacerbate the applicant's condition; and
  • Whether the employer can provide any special services or facilities which would allow the applicant to perform his pre-illness duties.
  1. [62]
    The effect of Dr Edwards' clarification was that the applicant could not perform the inherent requirements of the job, that his prognosis was poor, that a return to work would exacerbate the applicant's condition and that no special services or facilities could be provided.
  1. [63]
    Following receipt of Dr Edwards' clarification in the requested areas, later in the same day (26 April 2017), the applicant was provided with a copy of Dr Edwards' report and informed in covering correspondence that the continuation of his employment was under review. The applicant was invited to contribute to the review.

Enterprise agreement

  1. [64]
    A matter in contention in the proceedings was whether the respondents had complied with their obligations under the enterprise agreement in the way they went about achieving an assessment of the applicant's condition. Included in the applicant's concerns was a view that Dr Edwards did not adequately consult either Dr Greenwood or Mr Weir about the applicant's capacity to perform the inherent requirements of the job.
  1. [65]
    The effect of clause 7.8.1 is that if the employee elects to nominate his own doctor, the employer is to rely on the nominated doctor to supply the required medical information "provided that the doctor is appropriately qualified and satisfactorily answers the Employer’s questions". While not stated explicitly, it is implied if the satisfactory answers cannot be given, the employer could exercise a right to request that the employee be assessed by a doctor nominated by the employer.
  1. [66]
    Consistent with the enterprise agreement provisions, Mr Weir's evidence was that when he spoke to Dr Edwards on 24 April 2017, he formed the impression that he could not adequately answer Dr Edwards questions and recommended that Dr Edwards speak directly to the applicant. (T2-23):

And what happened in that conversation?So he informed me that Jay had declined the offer to meet with him and talk about the circumstances and had – Jay had exercised his right to have his physician and psychologist to talk with Dr Edwards in his stead.  Dr Edwards then went about asking me, you know, a number of questions that to me I didn’t feel I had enough knowledge to answer, so I suggested that it would be probably better directing those questions to Jay.  He told me that Jay didn’t want to meet with him.  I said, “Well, listen.  I’ll talk with Jay and see if he wants to,” and that’s the last I spoke with Dr Edwards.

So did you give any clinical opinions to Dr Edwards?It was a brief phone call, and I guess I might have given him my impression, but I don’t know that I went into any – any detail about what the – what my belief of the condition was.

How long did the call last?It was brief.  I don’t know.  Maybe a couple of minutes.  I think after a couple of questions I realised that he was wanting detail that I didn’t – couldn’t supply, so that’s when I suggested we talk – we – we get him to talk to Jay.

  1. [67]
    In her evidence in the proceedings, Dr Greenwood agreed that she spoke to Dr Edwards over the phone and that she had been provided with a copy of Dr Edwards' report dated 24 April 2017. Dr Greenwood said that she told Dr Edwards that the applicant had an anxiety disorder; that if the applicant returned to his workplace there would be a recurrence of the applicant's anxiety-type symptoms; and that the problem was with the workplace, not the work performed by the applicant. She said that she did not believe that the applicant could return to the workplace (T2-11):

Turning now to the impact on Mr Rivers, and from 2017 – so there – what were – what was the symptoms that he presented with?Fear of returning to that particular work site.  He became very emotional and tearful when he discussed that particular work site and became extremely anxious if there was any suggestion of returning to that particular work site.

  1. [68]
    In this evidence, Dr Greenwood has supplied information relevant to the applicant's capacity to perform work. The information supplied was to the effect that the applicant could not return to the Sunshine Coast workplace. While the applicant said that this discussion should have been extended to include consideration of factors that might have facilitated a return to work, it would have been self-evident to both Dr Greenwood and Dr Edwards that if the applicant could not return to the workplace, and where the remote performance of his duties as a storeperson appeared improbable, there could be no adjustment available. No evidence in the proceedings was adduced to demonstrate a different view.
  1. [69]
    The applicant also complained that the employer should not have, in the first instance, directed him to attend on Dr Edwards.
  1. [70]
    Clause 7.8.1 says in the first instance that the employer can require the applicant to take a medical examination in the defined circumstances. In my view, the effect of the second part of clause is that if the employer directs a medical examination, the applicant can exercise an option to have the examination completed by his own doctor. It is implied, in my opinion, that if the applicant did not exercise the option open to him, the examination would be conducted by a doctor nominated by the employer. I don’t accept that in nominating their own doctor in the first instance, the employer has breached the clause. 
  1. [71]
    Implicit in the applicant's submission was also a complaint that Dr Edwards should not have been used to ask questions and obtain the necessary information.
  1. [72]
    While the enterprise agreement requires the nominated doctor to answer the employer's questions and to supply the required medical information, it does not specify who should ask the questions and collect the information. In these circumstances, it was a matter for the employer's discretion whether one of its own staff performed these functions or whether a suitably qualified external entity or person was authorised to complete the task. Irrespective of who performed the task, the question to be answered remained the same. That is, was the applicant able to safely perform the inherent requirements of the job.
  2. [73]
    Either as a matter of common sense or of law, I can find no reason to criticise the employer's decision to utilise Dr Edwards. I accept that in some instances, such as with a non-complex physical injury, an employer's human resources officer or safety officer may adequately liaise with a medical practitioner in relation to an injured employee's return to work prospects. But such a process would be more problematic in the case of psychological or psychiatric illnesses. I don’t find anything inappropriate about an employer using a medically qualified individual to liaise with the applicant's medical team and assist the employer in a determination about capacity for work.
  1. [74]
    It was also an issue for the applicant that Dr Edwards may have misled Dr Greenwood and Mr Weir about his status or role and that both Dr Greenwood and Mr Weir expected or thought that Dr Edwards was conducting an independent medical examination. There is no evidence however that Dr Edwards ever intimated to either Dr Greenwood or Mr Weir that he was conducting an independent medical assessment. He did use a similar term in the heading of his report, but this was prepared after he had interviewed Dr Greenwood and Mr Weir. Prior to the interview, he had told both practitioners in a facsimile that he was assisting the employer, and no mention of an independent medical assessment was included.
  1. [75]
    Any expectations that the process involved an independent medical assessment were misconceived. The scheme of the enterprise agreement is not to provide for an independent medical examination to resolve the question about the inherent requirements of the job and safety. Rather, the scheme provides to the contrary, and its provisions militate against any reliance on independent advice in two ways.
  1. [76]
    Firstly, under the employee's right of election, the information is to be supplied by the employee's treating medical practitioners, who are not independent. Secondly, in the event that the employee nominates his own doctor, the employer is left to his own devices in determining what questions it is to ask and how it should elicit the required information.  The employer can therefore act subjectively in its own interests and the employee can rely on his doctor to represent his interest in answering questions from the employer or in providing information. Inherently, the process is not objective.
  1. [77]
    Further, statements made by Dr Greenwood or Mr Weir in their evidence to the effect that they thought Dr Edwards was operating independently of the employer and engaged in some form of WorkCover commissioned rehabilitation process and was not representing the employer's interests pursuant to clause 7.8.1 of the enterprise agreement cannot be accepted.
  1. [78]
    Firstly, the enterprise agreement clause clearly contemplates an outcome in which the applicant may be deemed incapable of performing the inherent requirements of the job and as a consequence may lose his employment. It is highly unlikely that the applicant, either independent of the NUW, or through the NUW, would not have known that his job was at risk in the process. Secondly, the applicant having invoked the provisions of the enterprise agreement, would have known that whether he performed the inherent requirements of the job would have been at the heart of any questions put by his employer to Dr Greenwood or Mr Weir. 
  1. [79]
    It is difficult to accept that the applicant would not have apprised both Dr Greenwood or Mr Weir of these considerations. On Dr Edwards' material, the appellant had consulted Dr Greenwood on 10 April 2017, some time after the applicant had been informed of the examination of his capacity for work. Similarly, on Dr Edwards' material, the applicant had consulted Mr Weir in the week commencing 17 April 2017.
  1. [80]
    The applicant complained that the quality or reliability of Dr Edwards' report was diminished by his failure to engage in a face to face interview with the applicant. The effect of Dr Edwards' opinion was that having spoken directly to the applicant on the telephone and having had the benefit of his discussions with Dr Greenwood and Mr Weir, it was not necessary that he meet with the applicant in person.
  1. [81]
    While this approach attracted criticism from the applicant, this was the scheme mandated by clause 7.8.1 of the enterprise agreement which the applicant had elected to invoke. Having refused to accept an assessment by Dr Edwards, there was no other way to proceed and the employer was restricted to discussions with Dr Greenwood and Mr Weir. While Mr Weir facilitated a telephone discussion with the applicant, there is no evidence that he committed to a formal examination of the applicant by Dr Edwards.

Liaison with Dr Greenwood and Mr Weir

  1. [82]
    Dr Edwards provided Mr Mitchell with a copy of his report on 26 April 2017.  Dr Edwards informed Mr Mitchell that he had spoken to Dr Greenwood and Mr Weir. He said that, on the advice of Mr Weir, he had also spoken directly to the applicant.
  1. [83]
    In the report, Dr Edwards recommended that the report be provided to Dr Greenwood and Mr Weir "so that they can (i) comment on my assessment and (ii) address the issues raised with Mr Rivers". In so doing, Dr Edwards was, inter alia, inviting the applicant's treating medical team to tell him if they differed with his reasoning or his conclusion. 
  1. [84]
    In his report, Dr Edwards noted the information that he had received from Dr Greenwood and Mr Weir:

Dr Greenwood's understanding is that Mr Rivers suffers from "anxiety" and that any discussion about returning to work at Bidfood Sunshine Coast prompts a significant and disabling psychological reaction.

Mr Rivers' psychologist provided a more detailed understanding of the psychopathology. Mr Weir advised Mr Rivers has an "Adjustment Disorder with mixed anxiety and depressed mood". Mr Weir has encouraged Mr Rivers to seek alternative employment.

  1. [85]
    Dr Greenwood treated the applicant between 2014 and for part of 2016. Records of the applicant's consultations with Dr Greenwood were not tendered into the evidence. It was Dr Greenwood's evidence that when she spoke to Dr Edwards, she told him that the applicant was suffering from an anxiety disorder and that any time there was a discussion concerning Bidfood, it triggered a significant psychological reaction. She also told Dr Edwards that the applicant was considering retraining to enhance his employability. It was Dr Edwards' evidence that while the diagnoses were expressed differently, his opinion was consistent with that of Dr Greenwood's in that the applicant could not be returned to work at the Sunshine Coast site.
  1. [86]
    The work capacity certificate signed by Dr Greenwood on 4 May 2017 was consistent with this advice. In this certificate Dr Greenwood wrote that the applicant's stated mechanism of injury was "ongoing victimisation in work place esp (sic) one manager" and in explaining why the applicant had no functional capacity for work, wrote that the applicant was "distressed and agitated when workplace discussed".
  1. [87]
    While Mr Weir had treated the applicant between February 2017 and July 2017, the records of his consultations were not tendered into the evidence nor specifically discussed during Mr Weir's testimony. While Mr Weir had provided a short report to Dr Greenwood on 2 February 2017 (Exhibit 19), there was no contemporaneous record of his views during the May-June 2017 period when the employer was considering whether to end the applicant's employment.
  1. [88]
    In the report to Dr Greenwood, Mr Weir had said that, from the applicant's explanation of events, "it seems clear that his employer (sic) future at his current workplace is limited without adequate intervention from an objective arbitrator". Mr Weir added that the applicant "accepted that he may have to seek employment elsewhere and is preparing himself for that possibility".
  1. [89]
    Mr Weir said in his evidence that he had read Dr Edwards' report and that he thought that the report "was fairly well investigated". He said however that in certain areas his opinion differed from the opinions of Dr Edwards. He noted in this regard that his diagnosis had been entered almost three months before Dr Edwards' assessment and he said that "things had escalated at work during that time".
  1. [90]
    Mr Weir said in his evidence that he did not discuss with Dr Edwards whether the applicant had a specific phobia about returning to work, and he disagreed with a diagnosis of "phobic anxiety". Mr Weir said that Dr Edwards did not ask his opinion about the applicant's capacity to perform the inherent requirements of his job, did not discuss a position description or task list, did not ask when the applicant may be able to return to work and whether any risks to the applicant were associated with a return to work.
  1. [91]
    Mr Weir's evidence was supportive of a view that the employer may have acted prematurely in concluding that the applicant's employment should be severed. Mr Weir had treated the applicant between 1 February 2017 and 20 July 2017. He thought that Dr Edwards "was a little bit hasty" in arriving at his conclusion that the applicant's employment relationships should be severed. Mr Weir thought that some form of mediation should have been entered into before this conclusion was arrived at. Mr Weir also said that he had spoken to the applicant about alternative career options (T2-27):

?Well, we spoke about alternative career options if – if one wasn’t available in Bidfoods and if things didn’t change in Bidfoods.  Typically, you either resolve something, you – you get a transfer within the organisation or you leave the organisation.  They’re the only three options I could have seen, and given that there wasn’t much mediation spoken about and – and I wasn’t really only getting my information from Jay, then looking at the way he was not coping with the process, the natural option was to move onto something more positive where he might be able to feel safe and have an alternative career path.

  1. [92]
    It is open to conclude, on Mr Weir's evidence, that it was not likely that the applicant could successfully be returned to the Sunshine Coast workplace. While he identified three options that might facilitate a return to work, he opined that in circumstances where the applicant was not coping with the process, the "natural option" was to choose a new career path.  The likelihood of such an outcome became more probable when Mr Weir also said in his evidence that the applicant had told him that he could not return to work at the Sunshine Coast site if the people with whom he was in conflict remained there (T2-29):

So the answer is yes?  Significant and disabling psychological reaction?I wouldn’t go that far.  I’d say that he was angry, he was upset.  At times, he was anxious, but I wouldn’t say it was disabling to the point that he couldn’t go back to the place.  We also spoke about Dr Edwards’ report that I saw at some point, and we discussed the diagnosis.  We looked at some specific aspects of it, and Jay said to me that he can go to work – to the workplace if the people aren’t there and he didn’t have any sense of fear or anxiety, but   

He could go to the workplace if the people weren’t there?If the – the – you know, the – what do you call them?  The people he was having difficulties with.

  1. [93]
    This evidence cast a doubt on the effectiveness of any mediation involving the applicant and the management personnel with whom he was in dispute. Dr Greenwood had arrived at a similar conclusion. Consistent with her view that the applicant could not return to the Sunshine Coast workplace, she declined to support any proposed mediation that might seek to obtain that result.

Conclusion

  1. [94]
    I prefer Dr Greenwood's and Dr Edward's opinions. Their opinions were consistent with the documentary contemporaneous evidence, while Mr Weir, in part, in his evidence in the proceedings was reflective of what might have been an appropriate course of action. In a contemporaneous context, Mr Weir had been given a copy of Dr Edwards report and had discussed the report with the applicant. It was always open to Mr Weir to write a report challenging Dr Edwards' conclusions and explaining why he was of the opinion that the applicant could be returned to work, with or without adjustments.
  1. [95]
    Mr Weir also said that when he discussed Dr Edwards' report with the applicant, the applicant told him that he could return to the workplace if the people that worked there who he was having difficulty with were not there. If this is the contemporaneous state of affairs, it offers little support for a view that the applicant could return to the workplace. 
  1. [96]
    Mr Weir also agreed that at the end of his treatment of the applicant, while the applicant's symptoms had been alleviated, they had not resolved. Mr Weir also accepted that when Dr Edwards diagnosed the applicant, things had escalated at work and the applicant's emotional and psychological condition may have been exacerbated.
  1. [97]
    In my view, when looked at in its totality, Mr Weir's evidence is not inconsistent with the evidence of Dr Greenwood or Dr Edwards. If Mr Weir accepted that the applicant could not return to the workplace if the same management staff were in place, any proposal for mediation becomes questionable and there was little prospect of the applicant going back to work at the Sunshine Coast site. Such an outcome was mirrored in Dr Edwards' conclusion that management practices at Bidfood Sunshine Coast contributed to the existence of irreconcilable differences between the applicant and his employer.

Dr Edwards' opinion

Independent of the employer

  1. [98]
    The applicant maintained that Dr Edwards did not act independently or impartially in the formulation of his opinion. The effect of the applicant's submission was that Dr Edwards' long term working relationship with the employer meant that he could not approach the medical assessment with sufficient objectivity and that he was motivated to produce an outcome which he understood would be consistent with the employer's preferences. Dr Edwards had been made very familiar with the applicant's employment history and knew that the applicant was facing a disciplinary process which had placed his continuing employment in jeopardy.
  1. [99]
    On the applicant's hypothesis, it would have been a very convenient outcome for the medical assessment to recommend the applicant's separation from employment. In his evidence in the proceedings, Dr Edwards rejected the hypothesis and said that, while he had performed services for the employer over many years, he exercised his opinion independently of any known preference of the employer (T3-34):

I’ve had dealings with Bidfoods over many years.  They’ve periodically referred cases to me.  The – the brief has always been the same.  Basically, see this individual, form a professional opinion.  They’ve – they’ve always treated me with respect as an independent specialist.  And if I said something, they would take that at face value, regardless of whether it was favourable to the employers.  The – it may have been either an expressed or implied desire to – to separate employment, or otherwise.  At the end of the day, the – they’ve asked me to make a informed, professional judgment and advise them accordingly.  I’ve been around this game too long that if I make a decision that is, you know, favourable one way or the other without the evidence to support it, that’s a waste of time, effort.

  1. [100]
    The applicant's claim of inherent bias is difficult to sustain in circumstances where the decision about incapacity was to be made in compliance with the provisions of the enterprise agreement and where Dr Edwards was acting as the employer's representative in process mandated by the agreement. Further, the scheme of the agreement requires the employer to act on the information supplied by the applicant's treating medical team. That is, the ultimate decision of the employer should desirably be consistent with the opinions of Dr Greenwood and Mr Weir. In my view it can be safely concluded that Dr Edwards' opinion was consistent with the opinion of Dr Greenwood and not inconsistent with the evidence of Mr Weir.
  1. [101]
    It is also relevant that Dr Edwards recommended, at the time of writing his report, that the report be provided to both Dr Greenwood and Mr Weir so that they could comment on his assessment and address the issues raised with the applicant. While both Dr Greenwood and Mr Weir received a copy of the report and in Mr Weir's case, he took the applicant through the report, neither Dr Greenwood nor Mr Weir elected to provide a report questioning Dr Edwards' conclusions.
  1. [102]
    If the applicant or Dr Greenwood or Mr Weir had significant differences with Dr Edwards conclusions, there had been ample time for the applicant to provide his own report to the employer challenging the conclusions. Dr Edwards' report had been provided on or about 24 April 2017, while the employer did not terminate the applicant's employment until 26 June 2017.

WorkCover claim

  1. [103]
    The applicant also questioned Dr Edwards' concurrent involvement in the enterprise agreement process and his participation in discussions about the employer's handling of the applicant's 5 January 2017 WorkCover claim. It was the applicant's submission that it was impossible for Dr Edwards to provide an impartial medical report given his contributions to the WorkCover issue which were antithetical to the applicant's interests.
  1. [104]
    While the applicant characterised Dr Edwards' involvement in the WorkCover claim as partisan and claimed that he provided tactical support for the employer's efforts to defeat the applicant's WorkCover claim, I think this proposition significantly overstates Dr Edwards' contribution to, or involvement in, the WorkCover process. The proposition also misconceives, again, Dr Edwards role in the enterprise agreement process.
  1. [105]
    The effect of Mr Mitchell's evidence was that personnel from the national office managed the workers' compensation claims process and that the national office had engaged an external contractor, Ms Helen Weber, Managing Director of Workplace Health and Management Solutions Pty Ltd, to manage the process arising from the applicant's WorkCover claim, including liaison with WorkCover and the Workers' Compensation Regulator.
  1. [106]
    The conduct complained of involved email exchanges between Dr Edwards and Ms Weber relating to Ms Weber liaison with either WorkCover or the regulator. On 20 March 2017, Ms Weber had emailed Dr Edwards (Exhibit 7) and informed him that the applicant had asked that his WorkCover claim be reviewed. She then said that while she was sure that she could submit enough material to have the WorkCover claim rejected, she was "concerned that if the company pursues a termination before the decisions this may cause some difficulty down the line".
  1. [107]
    Dr Edwards return emailed Ms Weber on the same day and informed her that the applicant had refused to attend an appointment with him. He then suggested that the refusal could be brought to the regulator's attention "so they at least think twice before making a decision". Dr Edwards then added:

Consequently, you may wish to notify WCR that Mr Rivers appears to be deliberately frustrating efforts of his employer to exercise "reasonable management action undertaken in a reason (sic) way in the presence of known psychological vulnerability (or words to that effect).

  1. [108]
    In an email dated 3 April 2017 (Exhibit 26), Ms Weber informed the employer's lawyers that she had spoken to Dr Edwards and that Dr Edwards will not start on the file until he is given the go ahead. She then said that she did not want to wait for the applicant to lodge an appeal against his WorkCover decision and concluded "let's just do what we need to do with this guy".
  1. [109]
    It should be noted firstly, that contact between Ms Weber and Dr Edwards had been arranged as early as 9 March 2017 in response to a request from Dr Edwards for information about the applicant's WorkCover claim. Dr Edwards would have seen this information as relevant to his medical assessment. 
  1. [110]
    From Dr Edwards' perspective there was nothing unusual or improper about the email exchange with Ms Weber and he did not accept that there was any conflict of interest (T3-86):

Well, number 1 is I don’t – I don’t perceive a conflict of interest.  The email of the 20th of March, which is before I get the instructions to take on a different role, right, is informed by all the information that came up to that point in time.  So I am communicating with Helen Weber in a professional, respectful way, informing her of some intelligence that she may not be aware of, which, as an independent medical examiner, an independent adviser- medical adviser to Bidfoods, she had every right to know, and every right to know how that information might be used.

  1. [111]
    In this evidence, Dr Edwards defended himself on the basis that, at the time of the email exchanges, he had not been engaged by the employer to act as the employer's representative in terms of the operation of clause 7.8.1 of the enterprise agreement. This was a valid defence in circumstances where the original brief provided to Dr Edwards on 8 March 2017 had been cancelled, and his new brief had not been issued before the email exchange with Ms Weber had started. Ms Weber's initiating email had been sent at 9.22 am on 20 March 2017 and Dr Edwards' reply was sent at 10.46 am on the same day. The email from the employer re-engaging Dr Edwards was not sent until 2.36 pm on 20 March 2017. While this email referenced an earlier conversation, it is not known when the conversation took place.
  1. [112]
    Ms Weber's role was to investigate the validity of WorkCover claims and where it was  believed that a claim was not valid, to present materials and submissions to either WorkCover or the regulator in support of a position that the claim was not one for acceptance. There was no ambiguity in Ms Weber's role and, in the applicant's case, her job was to convince WorkCover or the regulator that the management action associated with the applicant's claim was reasonable.
  1. [113]
    I don’t accept the applicant's submission that Dr Edwards' contribution to the email exchange with Ms Weber necessitates the setting aside of his report and a consequential conclusion that the employer's decision that the applicant could not perform the inherent requirements of his position was wrong. In the end result, the employer's decision can be sustained by reference to findings reached on the evidence of Dr Greenwood and, to a lesser extent, Mr Weir. 

Conclusion

  1. [114]
    The principal issue for determination is whether the exemptions included in the Act have the effect of excusing the respondents from liability arising from the decision to terminate the applicant's employment because of his impairment. The exemptions relied on by the respondent are those specified in sections 25, 35 and 108 of the Act. Principally, the respondents relied on s 25 of the Act and the proposition that the applicant could not meet the genuine occupational requirements of his position. Section 25 relevantly provides:

25Genuine occupational requirements

  1. (1)
    A person may impose genuine occupational requirements for a position.
  1. [115]
    Section 206 of the Act provides that if the respondent wishes to rely on an exemption "the respondent must raise the issue and prove, on the balance of probabilities, that it applies". In invoking the exemption provided in s 25 of the Act, the respondents asserted, in effect, that a fundamental and genuine requirement for the applicant's position was that the applicant be able to perform the inherent requirements of his job.
  1. [116]
    The answer to this question is to be principally informed by the medical evidence. The contemporaneous evidence was limited in that the records of the applicant's consultations with both Mr Weir and Dr Greenwood were not tendered. The available evidence comprised Dr Edwards' report, a short report written by Mr Weir on 1 February 2017 and three medical certificates written by Dr Greenwood in January, March and May 2017.
  1. [117]
    While the applicant questioned the validity of Dr Edwards' assessment, his opinion that the applicant could not return to the workplace was consistent with the key determinants:
  1. (i)
    As at the date of termination, the applicant had been off work for almost six months and during that period had no capacity for any type of work;
  2. (ii)
    The applicant could not perform the inherent requirements of the job, and was unlikely to perform the inherent requirements of the job in the foreseeable future;
  3. (iii)
    Dr Greenwood had concluded that there was no scope for rehabilitation or return to work at the applicant's place of employment;
  4. (iv)
    Mr Weir reported that the applicant had told him that he could not return to work while Mr Mitchell, Mr Abdul and Mr Magill and possibly others remained in the workplace;
  5. (v)
    The applicant provided no medical report challenging or contesting the report of Dr Edwards.

Special services or facilities

  1. [118]
    While the evidence supports the employer's conclusion that the applicant was unable to perform the inherent requirements of his position, and provided support for a prima facie position that the s 25 exemption could be relied on, it is necessary for the respondents to establish that in arriving at its conclusion it had considered whether or not the applicant could perform his role with appropriate special services or facilities in accordance with s 35 of the Act:

Special services or facilities required

  1. (1)
    It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if—
  1. (a)
    the other person would require special services or facilities; and
  1. (b)
    the supply of special services or facilities would impose unjustifiable hardship on the first person.
  1. (2)
    Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5.
  1. [119]
    While dealing with a matter which involved both a consideration of the provisions of the Public Service Act 2008 and the Anti-Discrimination Act 1991, the reasoning in Metro South Hospital and Health Service & Leighton v Luthje[2] is relevant to an understanding of s 25 and s 35 of the Act:

[45]  The QCAT Appeal Tribunal in Attrill recognised that being able to perform the genuine occupational requirements of a job was vital, and the IME process allowed an employer to assess this. If the employer, having received an IME report, then failed to consider what arrangements could be made prior to a retiring an employee, it would amount to unlawful discrimination.

However, if the employer did consider making reasonable accommodations, and these could not be made without imposing unjustifiable hardship on the employer, retiring the employee would not be unlawful discrimination.

  1. [120]
    The applicant submitted that the employer failed to consider special services and facilities in circumstances where the employer should have adopted one or both of the following options:
  1. (a)
    Mediation to resolve differences of opinion within the workplace. There was a reasonable prospect that mediation may have enabled the applicant's return to work; and/or
  2. (b)
    Transfer to another location. Alternatives were available and should have been adopted and implemented.
  1. [121]
    The applicant's submission that the employer did not consider or adequately consider special services or facilities relied on two propositions. Firstly, it was submitted that a reading of Dr Edwards' 24 April 2017 report does not disclose that Dr Edwards considered or adequately considered the issue. Evidence of this was provided when the employer found it necessary, on receipt of the report, to ask Dr Edwards to address the issue. Secondly, in order to be properly informed on the issue, it was necessary for Dr Edwards to consult with Dr Greenwood and Mr Weir on the subject and get their input. This however did not occur.
  1. [122]
    Dr Greenwood said that when she spoke to Dr Edwards, she was not asked for her input in relation to whether any adjustments might allow for the applicant to return to work. She also said that she did not recall receiving a copy of the applicant's job description nor a task analysis relevant to the applicant.
  1. [123]
    On the evidence of Mr Weir and Dr Greenwood in the proceedings, the applicant suggested that had Dr Edwards consulted adequately with Mr Weir and Dr Greenwood before writing his report, he would have included consideration of adjustments in his report. Mr Weir's evidence was to the effect that a successful mediation could have seen the applicant returned to work, while Dr Greenwood said in her evidence that she believed that the applicant could have returned to work at another site. Dr Greenwood also suggested that other adjustments might include the employer appropriately listening to the applicant when he made comments or complaints, although this was not suggested as a remedy in the same workplace.  
  1. [124]
    The respondents maintained that both the employer and Dr Edwards had looked at alternative ways of maintaining the applicant in employment, but concluded that the medical evidence precluded any alternative options being exercised.
  1. [125]
    It was clear on the evidence that the employer was aware of its responsibility to consider special services and facilities, and that the employer had asked Dr Edwards to advise on the issue. The letter of instruction given to Dr Edwards by Mr Mitchell on 8 March 2017 included a request that Dr Edwards:

If Mr Rivers is unable to either perform his position whether Bidfood Sunshine Coast can supply any special services or facilities or make any adjustment to his position that would allow him to perform his duties.

  1. [126]
    Whether the consideration was adequate or reasonable is the principal issue in contention. A doubt that the issue had not been adequately considered emerged when, despite Mr Mitchell's instruction, Dr Edwards did not deal in any overt fashion with the issue in his report. The fact that after receiving the report, the employer found it necessary to repeat the same question of Dr Edwards (Exhibit 31), added to the suspicion that the matter had been overlooked.
  1. [127]
    The follow-up request was made in an email to Dr Edwards on 26 April 2017. Dr Edwards was asked to clarify inter alia whether the employer could supply any special service or facilities or make any adjustment to the applicant's position "that would allow him to perform his pre-illness duties". The effect of Dr Edwards' response was that special services or facilities or adjustments could not be provided.
  1. [128]
    Setting this issue aside, there were passages in Dr Edwards' report which suggested that he had exercised his mind on the issue of adjustments. Firstly, in his report, Dr Edwards said that he had specifically discussed with the applicant his conclusion that, to overcome his current predicament, the applicant would need to separate from Bidfood Sunshine Coast. There is no evidence to suggest that this discussion provoked a response from the applicant involving adjustments. Rather, Dr Edwards said that, while the applicant was concerned about continuing access to income protection insurance, he agreed with the conclusion. Secondly, Dr Edwards had concluded that given the applicant's beliefs and specific anxiety disorder, he could not "identify any strategy that might restore the employee-employer relationship".
  1. [129]
    In Attrill, it was stated that "whether the circumstances of the impairment would impose unjustifiable hardship depends upon all of the relevant circumstances including the nature of the impairment, and the nature of the work." It is clear to me that in circumstances where the medical advice had concluded that the applicant could not be returned to the workplace and could not perform work at the workplace, the test of unjustifiable hardship is adequately met.

Fair work claims correspondence

  1. [130]
    The Fair Work Claims correspondence dated 10 May 2017 included a number of proposed adjustments including requests that "management staff" stop discriminatory practices, complete discrimination training, fairly resolve workplace complaints, provide an apology and participate in dispute resolution processes including mediation with the aim of restoring the employer-employee relationship.
  1. [131]
    It was Mr Mitchell's evidence that he had not received any other proposals or suggestions relating to adjustments (T2-113):

… Was there any other suggestions put forward as to how else you might have been able to assist Mr Rivers?No, no, there wasn’t.

Was it ever suggested that you could give him another job other than the one he used to have?No.

Was there any medical or other expert advice to suggest that that was a – that finding another job for him might have   ?No.

   helped.  Were you in a position to find him another job?No.

  1. [132]
    The effect of the respondents' submission was that, because the Fair Work Claims correspondence dated 10 May 2017 was written in response to the employer's show cause letter including the determination that the applicant could not perform the inherent requirements of the position, this was the clear and obvious opportunity for the applicant to be articulating any propositions that he could be returned to work with appropriate adjustments. It followed that any consideration of reasonable adjustments should be confined to matters raised in the 10 May 2017 correspondence.
  1. [133]
    I accept that the formulation of the 10 May 2017 correspondence constituted the appropriate opportunity for the applicant to respond to the employer's show cause notice foreshadowing termination, and to put forward proposals for a course of action other than termination. Relevantly, in so proceeding, while putting forward a suggestion of mediation, the applicant did not ask the employer to return him to work at a workplace other than the Sunshine Coast. Nor did the applicant provide any medical evidence contesting the conclusions reached by Dr Edwards in his 24 April 2017 report or endorsing the appropriateness of the range of adjustments included in the correspondence.
  1. [134]
    The effect of Dr Edwards' evidence in the proceedings was that he had been provided with a copy of the Fair Work Claims correspondence dated 10 May 2017. It was his opinion that there was nothing in the correspondence "that represented a plausible resolution of the relationship between the two parties".

Alternative employment location

  1. [135]
    While Mr Weir's evidence was to the effect that Dr Edwards did not discuss whether special services or facilities or adjustments were available, Dr Edwards said that the discussion with Mr Weir did include the issue of alternative employment (T3-26):

Yes.  Did he tell you anything about his view or what he had done in relation to the possibility Mr Rivers – an alternative employment?He certainly raised the issues around Mr Rivers was seeking alternate employment prospects.  He was talking about moving location.  He was talking about engaging in educational activities to improve his employability.  There weren’t specifics in terms, “Oh, he was going to do this, that or the other”, but there was clear evidence that he was planning and considering, and there was – I was informed by both Dr Greenwood and Mr Weir that Mr – Mr Rivers was planning to head down to the Gold Coast.

And did they indicate whether they supported that or not?Both – both practitioners indicated that they thought it was a good idea and they were encouraging Mr Rivers to do so.

  1. [136]
    Dr Edwards' said, in effect, that this discussion prompted him to consider the possibility of returning the applicant to work at another location (T3-33):

--- I actually entertained that possibility when he indicated that he wanted to move to the Gold Coast.  So one of the options then, within my spectrum of consideration was, well, could he actually be redeployed to a Bidfoods facility on the Gold Coast as opposed to the Sunshine Coast?  There, I considered whether or not the – the management structure would make any material difference to his anxiety and he would be going into an environment which would have exactly the same management structure, which he was indicating to me in that telephone conversation was a source of his distress.  So while it is a plausible idea in some people, in this particular individual at the time that I assessed him, I considered it was not plausible.

  1. [137]
    In her 4 May 2017 certificate, Dr Greenwood had said that the applicant had no capacity for any type of work and wrote that the applicant was "distressed and agitated" when the workplace was discussed. Consistent with this, in his 24 April 2017 report, Dr Edwards recorded that Dr Greenwood told him that any discussion about a return to work at the Sunshine Coast "prompts a significant and disabling psychological reaction". On the contemporaneous evidence, given the severity of the applicant's condition and the causal link with the workplace, any discussion about adjustments would have been largely redundant. This state of affairs was confirmed by Dr Greenwood in her evidence in the proceedings when she confirmed that the applicant could not return to the workplace.
  1. [138]
    Notwithstanding this, Dr Greenwood said in her evidence that the applicant was willing to return to work at a work location of the employer other than the Sunshine Coast (T2-12):

Turning now to the impact on Mr Rivers, and from 2017 – so there – what were – what was the symptoms that he presented with?Fear of returning to that particular work site.  He became very emotional and tearful when he discussed that particular work site and became extremely anxious if there was any suggestion of returning to that particular work site.

And what were the consequences of his capacity to work at that point?He couldn’t – not at that workplace.  He could’ve – he was quite willing to go and work elsewhere, but I think there was some sort of legal issue that he wasn’t able to – to move to a different work site at that point in time – I think.

But a work site move would have satisfied the   ?Yes.

And was there anything – was it ever sought from you as to what strategies would facilitate that?From?

The employer.  Did the employer ever ask you for your opinion?No.

And did the employer ever discuss with you at all anything about how they could return Jay to work?Not to my recollection, no.

  1. [139]
    Dr Greenwood had treated the applicant between 2014 and some time in 2016, presumably at least up until May 2016. She resumed treating the applicant in June or July 2018. She did not say at what point in time she formed the view that the applicant was willing to work elsewhere, nor did she say when she thought the applicant may be ready to return to work. Neither did her evidence unambiguously state that a willingness to work elsewhere meant that the applicant wanted a transfer to another location with the same employer. Given the absence of any contemporaneous evidence supporting a conclusion that the applicant was specifically promoting a transfer within the first respondent's operations, it is more likely that Dr Greenwood was putting a convenient gloss on the applicant's desire to relocate to the Gold Coast or to explore new career options.
  1. [140]
    The effect of the three work capacity certificates prepared by Dr Greenwood in January, March and May 2017 was that the applicant had no functional capacity for any type of work between 4 January 2017 and at least 4 June 2017. Further, despite the template certificate specifically asking the medical practitioner to address the subject of "Rehabilitation at work – return to work plan" (Part F) and to answer the question "What workplace modifications are required to facilitate return to work?", the only entry made by Dr Greenwood was a suggestion in the 4 January 2017 certificate that disciplinary procedures be reviewed.
  1. [141]
    In her evidence, Dr Greenwood said that she thought her liaison with Dr Edwards was part of a rehabilitation process associated with the applicant's WorkCover claim. If that was her state of mind at the time, and given her evidence about the applicant's willingness to work at different locations, it is incongruous that she would not have, in completing her 4 May 2017 certificate, addressed the issues relating to rehabilitation and return to work.
  1. [142]
    It is also relevant that despite receiving a copy of Dr Edwards' report and then subsequently examining the applicant on 4 May 2017, there is no evidence that either Dr Greenwood or the applicant thought that a response to the report and the subsequent employer's communication, should include a positive statement to the effect that the applicant was fit or would be fit for work provided that he was given a transfer to another location. Further, there is nothing in the Fair Work Claims correspondence of 10 May 2017 communicating a belief from the applicant's general practitioner that the applicant should be returned to work at another Bidfood location.
  1. [143]
    It was Mr Mitchell's evidence that he had not received any request from anyone to the effect that the applicant should be returned to work at a different location. The effect of his evidence was that Bidfood did not operate out of the Gold Coast and that the nearest alternative sites to the Sunshine Coast were Morningside in Brisbane or Hervey Bay. He doubted the practicability of a return to work at a different location (T3-122):

In that letter or at any time around about that point, was it ever suggested to you by anyone that an alternative proposition would be to transfer him to another   ?No.

   Bidfood work location?No.

Did you have the authority to transfer him to any such location?No.

Do you know, where would, geographically, the nearest places be?Either Morningside or Hervey Bay.

Did Mr Rivers ever offer   ?No.

   to go to any such place?No.

In the wide range of suggestions by Mr Heffernan, is there any mention whatsoever of a relocation?No.

Mediation

  1. [144]
    Mr Weir's evidence in the proceedings about the prospects of a return to work with adjustments is set out below (T2-25):

With the right environment, could Mr Rivers return?I think at the time possibly.  It may have been possible for him to return if appropriate medication and – and – sorry – mediation and, you know, conditions were put in place, but I was of the understanding that mediation wasn’t offered, but – that the union wasn’t proceeding with it and there was no mechanism by which any sort of arbitration could have been processed.

And what do you mean by arbitration?Either a mediation  or agreement or mechanisms put in place by which the complaints could be addressed appropriately and modifications made or allowances made to the workplace.

So in this place arbitration means appearing before someone, before a commissioner.  You don’t mean   ?Okay.  I mean mediation then.  Sorry.

  1. [145]
    In his evidence, Mr Mitchell did not accept that mediation provided a potential avenue for resolution. In his view, given the opinion of Dr Edwards and in the absence of any contrary medical opinion, he did not believe that dispute resolution processes had any prospect of success.
  1. [146]
    Neither did Dr Greenwood, in her evidence in the proceedings, support a mediated return to employment at the Sunshine Coast.  Dr Greenwood said that the applicant could not have returned to that site "with those particular personnel". When she was asked in examination in chief if a return to work could occur if the same personnel were better trained or educated, she reiterated that she did not think that the applicant would have been able to go back to that workplace.
  1. [147]
    Dr Greenwood also said that when it came to the applicant's level of anxiety relative to his place of work, his anxiety was ranked severe. It is not open to conclude, on Dr Greenwood's evidence, that mediation involving the applicant and personnel at the Sunshine Coast workplace would have been successful in returning the applicant to work at that workplace.   

 Different treatment

  1. [148]
    The applicant claimed that, in terms of the employer's approach to his absence, he had been treated differently to another employee who was suffering from a similar impairment. While the applicant's services were terminated within six months of his commencement of sick leave, the other employee had remained employed for almost two years before his employment was ended.
  1. [149]
    Mr Mitchell's evidence was to the effect that when he arrived at the Sunshine Coast site, he identified a name on the payroll system of an employee on extended unpaid leave and who had been providing a medical certificate every six months to support the absence. He said from that point forward he employed the same process as he had employed with the applicant. That is, he sought advice and then referred the employee to Dr Edwards for assessment. After the assessment, Mr Mitchell met with the employee, and in the meeting, the employee acknowledged that he was never going to return to work, and decided to resign.

Trade union activity

  1. [150]
    The applicant commenced work with the first respondent on 4 August 2013. He said that he became a union delegate in or about February 2016. The applicant's evidence was that once he became a delegate, he saw a "dramatic change" in his relationship with his employer and referred to the following pattern of behavior which he said demonstrated less favourable treatment because of his trade union activity:
  1. (i)
    Warnings issued to the applicant in April and May 2016 for taking meal or smoko breaks beyond the permitted duration;
  2. (ii)
    The employer's refusal to reclassify the applicant and pay him a higher rate of pay;
  3. (iii)
    Mr Abdul's direction that the applicant not wear his NUW shirt;
  4. (iv)
    A show cause notice dated 4 January 2017 alleging misconduct on the part of the applicant in respect to the Evans incident and in respect to the applicant's attendance record;
  5. (v)
    The failure of the employer to investigate a complaint of bullying made by the applicant on 4 January 2017.
  1. [151]
    Ultimately the applicant attributed the commencement of a disciplinary process on 4 January 2017, the direction that he attend a medical examination on 8 March 2017 and the termination of his employment on 26 June 2017 to his trade union activities.
  2. [152]
    I proceed on the basis that the applicant's claim turns on whether the applicant was treated less favourably because of his trade union activity than a comparable employee or a co-worker who was not associated with trade union activities.

Warnings for excessive smoko breaks

  1. [153]
    The applicant said that he was treated less favourably as a union delegate in that persons who were not union delegates were allowed to take, without reprimand, longer smoko breaks. The applicant had been given, on 6 April 2016, a First and Final Warning Letter (Exhibit 1) in relation to the taking of excessive breaks on three consecutive days, swearing at a co-worker and giving an unauthorised direction to another employee. Despite the "first and final" character of the first warning, the applicant had, on 13 May 2016, received a Second and Final Warning Letter in relation to the taking of excessive breaks.
  1. [154]
    The respondents argued that these warnings could not give rise to discriminatory conduct because they were out of time matters in circumstances where the applicant's complaint had not been lodged with the Anti Discrimination Commission until 24 August 2017. Further, in the referral of the complaint to the QIRC, the Anti Discrimination Commission had advised that the complaint did not include any out of time allegations. Finally, it was submitted that the proceedings were circumscribed by the statement of facts and contentions filed by the applicant which did not include any reliance on the out of time incidents.
  1. [155]
    While the applicant conceded that the warnings could not support a finding of discrimination, it was submitted that they were relevant to the proceedings in that they provided context and gave an insight in a pattern of behavior on the part of the employer that had emerged over time and was connected to the applicant's trade union activity.
  1. [156]
    The applicant did not appear to contest the first warning, but he took issue with the second warning. He said that after the first warning he took particular care with his time keeping and used a stop watch to ensure that his breaks did not exceed the specified limit. He maintained that there was no factual basis to the allegations.
  1. [157]
    This led the applicant to conclude that the warnings must have been discriminatory because the warnings were unwarranted on the facts and the only reason that he could think may have motivated the warnings was that he was "more vocal than the other delegates in the place". A doubt about the factual basis for the warnings arose when the applicant asked for, but did not receive, a copy of the relevant CCTV footage.
  1. [158]
    It was Mr Hawker's evidence that the CCTV footage was saved onto a USB stick and provided to Mr Mitchell. It was his understanding that Mr Mitchell provided the applicant with the USB stick. The effect of the applicant's evidence was that while he was given a USB stick, the CCTV footage was not stored on it.
  1. [159]
    Notwithstanding the differences in the evidence about the veracity of the employer's allegations, the applicant conceded that despite taking the matter to the NUW, and despite the NUW making representations to the first respondent, the warnings stood.
  1. [160]
    The respondent submitted that the applicant was warned, not because he was a NUW delegate, but because of his indolence. The warning had been issued by the operations manager at the time, Mr Hawker. It was Mr Hawker's evidence that he had reviewed closed circuit footage and had established from the footage the actual times that the applicant had been absent from his place of work. Mr Hawker said that he was not aware of any association between the allegation about excessive breaks and the applicant's union activity. Further, Mr Hawker insisted that he had not singled out the applicant for review in terms of excessive break taking. He said that he targeted everyone that he knew was taking more breaks than they should have been taking.
  1. [161]
    Mr Mitchell agreed that the applicant did say that he was using a stop watch, but he said that the applicant was not correct in his measurements. Mr Mitchell said that he had no recollection of the applicant being presented with a blank USB.
  1. [162]
    In my view there was insufficient evidence to establish that the applicant was treated differently in terms of enforcement practices around time keeping. The warning letters were highly specific in identifying precisely when the applicant offended and the extent of his time unworked. The applicant did not dispute that he had offended in the first instance. While he contested the second warning, the employer's evidence was that, while he may have used a time piece, his timekeeping did not improve.
  1. [163]
    Significantly, despite being given a final warning in respect to his first offence, the applicant's employment was not terminated as a result of the second offence. He was given a reprieve and there was no further incident of the same nature reported. When viewed in isolation, the facts and circumstances associated with this incident, do not in my view, assist the applicant's claim that a pattern of discriminatory conduct existed.

  Underpayment of wages

  1. [164]
    The applicant had been moved to the chillers as part of the resolution of an intractable dispute with his supervisor, Mr Fellows. The applicant accepted that a move from evening shift to day shift and a move to the chiller was part of an arrangement agreed in resolution of the dispute. He accepted that if an arrangement was not struck, it was possible that both he and Mr Fellows would lose their jobs.
  1. [165]
    While it was not clear on the evidence when the applicant was transferred to the chillers, a file note written by Mr Abdul (Exhibit 27) disclosed that by 27 September 2016, the applicant had stopped working in the chiller and had relocated to the freezer.
  1. [166]
    At some point in time after the transfer to the chillers, the applicant complained that he was promised a pay rise which was not honoured. The applicant said that he had been treated less favourably by Mr Mitchell in that Mr Mitchell blocked a pay rise due to him because of his trade union activity.
  1. [167]
    The applicant said that when he was first transferred to the chiller, he worked with an employee, Jamie Rodgers, who was higher classified and higher paid than he was. However, when Mr Rogers moved to the freezer section, and the applicant was the senior employee in the chiller, he was not allocated a higher level and paid the higher wage rate. The applicant said that when Mr Abdul approached him and asked him if he wanted to run the chiller, he asked him if he would get to go on to level 5. The applicant said that Mr Abdul told him that he would receive a pay rise once he completed a six month probation. Mr Abdul did not deny that he said this to the applicant, but it appeared that Mr Abdul misunderstood the relevant policies and procedures.
  1. [168]
    When the pay increase never eventuated, the applicant raised the matter with Mr Mitchell who told him in the first instance that he knew nothing about the matter and that he would make enquiries. Eventually the applicant was informed that he was not entitled to a pay increase. In the evidence in the proceedings, various explanations were provided, but the basic proposition was that just because Jamie Rodgers was classified at Level 5, it did not follow that the applicant was entitled to be classified at Level 5. Mr Mitchell said that the decision to allocate Level 5 to Mr Rodgers had been before his time. He said a subsequent decision had been made to leave Mr Rodgers on Level 5 because he was a very good worker. The effect of Mr Mitchell's evidence was that the applicant was correctly classified as Level 4.
  1. [169]
    Other explanations were given during the evidence pointing to why Mr Rodgers had been paid at Level 5, while the applicant was held at Level 4. They included propositions that Level 5 applied to leading hands, and that the applicant was not a leading hand, or that the applicant's unofficial probation status arising from his receipt of final warnings meant that he would not be considered for a promotion. In his evidence the applicant accepted that Mr Abdul may have made a genuine mistake in promising Level 5 in the first instance.
  1. [170]
    Whatever promises may or may not have been made to the applicant when he first moved to the chillers, the respondent submitted that the applicant had no entitlement to a higher grade under the enterprise agreement. It was submitted that the applicant was correctly classified under the enterprise agreement as a Grade 4 Storeperson (Forklift Driver). The respondent said that Grades 5 and 6 of the agreement apply, in the stores area, to leading hands and team leaders. In this regard it was Mr Hawker's evidence that while other employees came in and out of the chillers, the applicant was the only employee dedicated to working in the chillers, that the applicant did not supervise any other employee, that the applicant was not responsible for stock control and that the applicant had no interaction with customers or suppliers.
  1. [171]
    While the applicant involved the NUW in the issue, the applicant was not able to persuade the employer that he should be classified at Level 5.
  1. [172]
    The applicant's evidence does not support a finding that he was directed to supervise or otherwise co-ordinate or manage the work of other employees. His evidence on the subject was equivocal. He said that he was "guiding" the pickers that came into the chillers on what needed to be done (T1-46):  

Your role didn’t involve you assuming line of demand responsibility for anybody in the chiller, I suggest to you?Well, Brett told me that I was there, I was running – I would be doing Jamie’s job.

You were – my question is, you didn’t have any other employers under your command and control in the – or under your direction in the chiller?I believe I did.  The pickers that came in there and worked in there.

So if people came in to do some picking work you might tell them where things were but that would be able it.  Is that right?No.  They’d come to me and ask questions about their picking, you know, the way that they should be picking it.

  1. [173]
    While compliance with the enterprise agreement does not preclude the possibility of discriminatory conduct, I am not persuaded to enter a balance of probabilities finding in the applicant's favour. It is possible that Mr Mitchell's intervention in blocking the pay raise could have been improperly motivated, but it was more likely motivated by other factors including that the applicant was on probation because of his final warnings or because of a desire to ensure compliance with the enterprise agreement and bring to an end an unofficial agreement which was struck for Mr Rodgers.

Union shirt

  1. [174]
    The applicant said that he had been less favourably treated in that Mr Abdul had instructed him not to wear his NUW delegate T-shirt to work. (T1-15):

And what exactly did he say?In the freezer we wear freezer gear over our uniforms, so nothing’s ever seen.  I came out for lunch.  I removed my freezer gear.  I had my lunch.

Yes?I came back from lunch and put my freezer gear back on and that’s when Brett approached me and said that I was not allowed to wear this T-shirt any more.  I had to wear my Bidvest uniform.  There was words exchanged that, you know, “Why are you picking on me, just because I’m wearing a union delegate shirt and youse don’t like the union symbol thrown out there”, and also pointed into the warehouse where other people weren’t wearing high-vis shirts.

  1. [175]
    The applicant did not deny that he was walking around the warehouse during his lunch break without the company hi-viz shirt. The applicant said that he was working in the freezers at the time and that his shirt was worn under his freezer apparel. The problem arose when the applicant took his freezer apparel off during the lunch break, and then decided to walk around the warehouse. The applicant maintained however that no other employee got "told off" for not wearing a Bidvest hi-vis shirt.
  1. [176]
    It was Mr Abdul's evidence (T2-76) that employees were issued with a hi-viz shirt and that it was required to worn in the warehouse for safety reasons. He said that the union shirt worn by the applicant did not meet safety standards because a red square on the front and back of the shirt blocked out most of the hi-viz elements:

… I don’t care who you are, you come into my warehouse and I’m the supervisor or the operations manager, you wear your high-vis, you wear your safety gear.  We supply it to you, that’s what you wear.

… The red square blocked out from most of the high-vis, especially on the back, and unfortunately when you’ve got your back turned to something someone can run you over, as simple as that.

  1. [177]
    Mr Abdul said that he made a diary note of the exchange with the applicant. The diary note was dated 23 December 2016 and is in the evidence as Exhibit 28. In the file note, Mr Abdul said that he told the applicant that he could not wear the union delegate shirt to work even though it was hi-viz, as the shirt "had a lot of writing across the front and back and a big red square etc.". He said that he explained to the applicant that "we supply him a uniform and he is required to wear it for safety the same as freezer jackets, pant and boots". In response, according to the file note, the applicant told Mr Abdul that the NUW had told him that he could wear the shirt and that he would get the NUW to ring Mr Mitchell.
  1. [178]
    The applicant denied that the union shirt was inferior to the company shirt in terms of safety considerations. He agreed that the union shirt had a "big red square" on it but he denied that there was a lot of overwriting and he maintained that the "visibility of the union shirt was a lot higher and visible than the usual Bidvest uniform". Mr Evans' evidence was consistent in that he said that the union shirt provided the same level of visibility as the company shirt.
  1. [179]
    Mr Evans said in his evidence that he wore the company hi-viz shirt. He also said that during stocktakes, while some of the persons involved were dressed casually, they wore the company hi-viz shirt or vest.  This evidence supported Mr Abul's position where he had stated that, at stocktake time, sales reps or persons who do not normally work in the warehouse, wore the hi-viz vest.
  1. [180]
    The applicant conceded that it was common practice for workers to wear an NUW beanie while working in the freezers. He agreed that the letters NUW were prominently displayed on the beanie. It terms of alleged discriminatory practice, no adequate explanation was provided to explain why, if the company had a bias against the wearing of union apparel, it allowed employees to wear the NUW beanies.
  1. [181]
    In final submissions, the applicant asserted that the evidence revealed inconsistencies in the respondent's evidence that the uniform policy was strictly enforced. The applicant submitted that the respondent's conceded in their evidence that "staff had been previously allowed to work in the warehouse wearing simply a flouro or hi-viz vest over other clothing".
  1. [182]
    While the applicant, in evidence and submissions, argued that the employer's uniform policy was inconsistently enforced, it is significant that where there was evidence of inconsistency, it did not relate to the wearing of a hi-viz shirt in the warehouse, but involved commentary on such items as footwear and protective clothing. When it came to the requirement to wear a hi-viz shirt or vest in the warehouse, the evidence supported a conclusion that this was the practice.
  1. [183]
    The central issue then is one of interpretation about the adequacy of the union shirt. In this regard the applicant submitted that if the respondent's view on adequacy were accepted, rather than being told that he should not wear the union shirt, the applicant should have been told to wear a high viz vest over his union shirt. Mr Abdul agreed that this was an available option. He said that all that the applicant "had to do was slip a vest on, which was there supplied, and over the top of his shirt". Mr Abdul said that the applicant could wear his union shirt outside of the warehouse, but not while he was in the warehouse.
  1. [184]
    I prefer a conclusion that, in directing the applicant to the company hi-viz shirt, the respondents were motivated by safety considerations, not by a desire to adversely treat the applicant because of his trade union activity. While Mr Evans supported the applicant's view that the union shirt provided adequate visibility, neither the applicant nor Mr Evans are the arbiter of safety standards. Mr Abdul was entitled to enforce a safety regime in the warehouse where everyone moving around the warehouse wore the company hi-viz shirt or vest. If he genuinely believed that safety standards may be comprised by accommodating that the applicant's preference to a different shirt, he was entitled to act and enforce the standard policy. I do not accept that the real or motivating reason for acting was associated with the applicant's status as a union delegate.

Incident with Mr Evans

  1. [185]
    An incident had occurred in the workplace on 27 October 2016 in which it was alleged that the applicant had bullied and lied to a co-worker, Mr Evans. No action was taken in respect to the matter at the time that it occurred, but some time later on 2 December 2016, the incident was raised with Mr Evans by Mr Abdul.
  1. [186]
    The applicant claimed that the investigation into the Evans incident was motivated by a desire on the part of management to be rid of him and to terminate his employment because of his union activity.
  1. [187]
    Mr Abdul had become aware of the incident during a discussion with Lester Hahn in early December 2016. A statement was subsequently prepared by Mr Hahn on 12 January 2017 (Exhibit 23). In his statement, Mr Hahn said that he had witnessed the incident (Exhibit 23), that Mr Evans was having a heated discussion with the applicant, and that he observed that Mr Evans was visibly upset.  
  1. [188]
    It was Mr Abdul's evidence that he had a limited involvement in the matter. He said that he heard "along the grape vine" that Mr Evans had an argument with the applicant. He was not sure when he heard about the argument, but he said that he heard about the argument from Lester Hahn. He agreed that at some point in time he told Mr Evans that he needed to go and see Mr Mitchell "because bullying is not tolerated within the business".  Mr Abdul said that Mr Evans told him that he had been bullied by the applicant.
  1. [189]
    The effect of Mr Mitchell's evidence was that he spoke to the applicant the day after Mr Abdul had his discussion with the applicant. He said that he asked Mr Evans to prepare a written statement, however Mr Evans did not want to get involved and declined to make a statement. He denied that Mr Evans was unconcerned about the issue and that the discussion was unnecessary (T3-99):

MR HEFFERNAN:   So if Mr Evans didn’t take issue with it, hadn’t made a complaint between the 27th of October and the 12th of December, had specifically expressed resistance to Mr Magill in late December, why was this an item?  Why was this still being pressed?Mr Evans was very distraught when I spoke to him when he was in my office.  He – he was on the verge of tears.  He absolutely clearly upset him.  Now, as a manager, if something comes to me about bullying or anything like that, I have to take – I have to at least investigate – even though it didn’t come to me directly, I still have to investigate the matter.

  1. [190]
    After initially speaking to the applicant on 2 December 2016, Mr Mitchell took leave around 17 December 2016 because of a bereavement in the family. It was in these circumstances that Mr Mitchell said that, before going on leave, he instructed Mr Abdul and Mr Magill to continue to investigate the incident involving the applicant and another matter of concern involving an abuse of sick leave. Mr Mitchell said that as a result of his instruction, he was aware that Mr Abdul sought advice from human resources, reduced allegations to writing, and presented the allegations to the applicant.
  1. [191]
    It was Mr Magill's evidence that he took on the role of Acting General Manager when Mr Mitchell went on leave. The effect of his evidence was that the incident involving the applicant and Mr Evans came up in a handover meeting with Mr Mitchell. He said Mr Mitchell asked him to start an investigation and get a statement from Mr Evans and Mr Hahn. He said that he met with Mr Evans on 4 January 2017 in the company of Mr Abdul and that he asked Mr Evans to recount what had happened in the incident with the applicant. Both he and Mr Abdul took notes of what Mr Evans said. Based on these notes, Mr Magill offered to prepare a statement for Mr Evans and asked Mr Evans to sign the statement (T2-39): 

Yes.  And what was his response to that suggestion?Look, at first, he – he didn’t want to be involved.  He said, you know, to the – to effect that he didn’t want to be involved with somebody, you know, getting sacked.  And I said, “Look, this is just a statement of – of what’s transpired,” and he agreed that he would then write the – he would sign off on the statement.

Now, did you type up a statement?Yes, I did.

  1. [192]
    While Mr Evans said that he was reluctant to sign the statement and suggested that he was intimidated into so doing, he did sign the statement (Exhibit 17) on 4 January 2017 because of what were, in effect, job security concerns. The statement is reproduced below:

04/01/2017

Re: incident with Jay Rivers

On the 27th of October I had just returned from doing my Streets run and was talking to Lester Hahn near the pick slip pigeon holes and Jay Rivers was standing nearby putting his freezer gear back on.

Jay said to me that Bidvest had a list of people that were being watched due to their work performance and it was a “target” list for people to be sacked.

He said words to the effect that I was on the list and that I better watch myself and that I should join the Union. I replied that I couldn’t afford to join the Union and Jay kept pushing me to join to the point where I get further upset and told Jay to get lost.

This was not the first time that Jay had pushed me to join the Union.

I later discussed the incident with Mark Stevens because I was so upset about what had happened.

When I went home that night I was still extremely upset about the situation and started looking into work place harassment online to see where I stood because I didn’t feel that what Jay had said to me was needed and I didn’t want to be pushed into joining a Union when I didn’t want to.

Matthew Evans

  1. [193]
    In his evidence in the proceedings Mr Evans said that during his exchange with the applicant on 27 October 2017, he "got quite nasty and said some very big profanities towards" the applicant, and that he had told the applicant to "F-off". The applicant's evidence about the altercation was similar in some respects (T1-16):

Right.  What happened with that altercation?I just gave Mr Evans a heads-up that they were gunning for him and that if he needed, you know, protection – you know, if he wanted to sign up to the union, we would be able to help him and stand up for him.

And what was his response to that?He told me to eff off.

  1. [194]
    Mr Evans said that he did not lodge a complaint about the applicant and that he did not know how Mr Mitchell or Mr Abdul became aware of the incident. He acknowledged however that he had told some co-workers about the incident.
  1. [195]
    Mr Evans said that some time after the incident he was asked about the matter by Mr Abdul. Mr Evans said that he was speaking to Mr Abdul in the office when Mr Abdul pulled him aside and asked him what had happened and why he had not made a complaint. Mr Evans said that the following day, Mr Mitchell also asked him about the incident. During this discussion Mr Mitchell asked him to write a statement, however Mr Evans refused because he did not want to get involved in the issue. 
  1. [196]
    The evaluation of Mr Evans's evidence is complicated by the fact that Mr Evans ultimately wrote three statements about the 27 October 2017 incident and related matters. His second version was dated 1 March 2017 and was prepared at the request of the applicant who used the statement in support of his 5 January 2017 WorkCover claim. The third version was dated 25 June 2017 and was provided as part of Ms Weber's investigation into the 5 May 2017 WorkCover claim.
  1. [197]
    While there is significant variation in the content of the three statements, the applicant suggested during examination in chief that the statement he made on 1 March 2017 provided the most accurate representation of his position. However, he conceded in cross-examination that the first statement dated 4 January 2017 was nevertheless an accurate version of events.
  1. [198]
    The 4 January 2017 statement is brief and is restricted to a description of the incident with the applicant and some commentary on Mr Evans' state of mind immediately after the incident. The 1 March 2017 statement is substantially directed at the management action associated with the incident and the management motivation in getting Mr Evans to provide a statement. The 25 June 2017 statement comprises 27 paragraphs. The affidavit primarily deals with two separate subjects. It deals with the 27 October 2017 incident, and it canvasses at some length issues that Mr Evans had with management in the first three or four months of 2017.
  1. [199]
    While the statement does not contradict the derogatory remarks about management which appeared in the 1 March 2017 statement, neither does it repeat the remarks. The content of the statement leaves open the inference that a purpose of the June 2017 statement was to explain why Mr Evans was motivated to write the 1 March 2017 statement. In this regard, Mr Evans spoke of his disaffection with his employer at the time and said that he was really upset over the way that the company had treated him. He had elected to join the union and had agreed to provide the applicant with a statement supporting his WorkCover claim in respect to an injury which was said to have been caused by unreasonable management action.
  1. [200]
    In his 1 March 2017 statement, Mr Evans explained why he was making the statement. He said that he wrote the statement because he "felt what they asked me to do was wrong against jay so I am writing this for jay to use against Luke Mitchell, Brett Abdul and Brendan Magill". 
  1. [201]
    In the statement, Mr Evans alleges that Mr Abdul, Mr Mitchell and Mr Magill all made derogatory remarks about the applicant. In the first instance he said that when he spoke to Mr Mitchell in December 2016, Mr Mitchell asked him to provide a statement "so that they could use it against Jay as they had enough of him". Mr Evans said that Mr Mitchell told him that the applicant had called in sick and that the applicant "was letting the team down and pretty much a trouble maker and wanted him gone …". 
  1. [202]
    Mr Evans also alleged that during his discussion with Mr Abdul and Mr Magill on 4 January 2017, he was told that they needed a statement to use against the applicant "as he needed to go". He also said that when he said that he did not want to cause anyone to lose their job, Mr Abdul and Mr Macgill told him that "the situation was just the icing on the cake as they had heaps" on the applicant.
  1. [203]
    Two issues arise for determination in relation to the Evans incident. Firstly, did the underlying facts and circumstances warrant the commencement of an investigation into the applicant's conduct. Secondly, did the reason for commencing the investigation include a prohibited reason. That is, if the applicant was not a union delegate and had not been actively engaged in trade union activity, would the investigation into the 27 October 2017 incident have been commenced.
  1. [204]
    I am satisfied that the applicant's conduct warranted a management response. While it was reasonable for him to encourage co-workers to join the union, the evidence supports a finding that his approach to Mr Evans caused substantial distress. The level of distress makes it very unlikely that the discussion about union membership was casual, amicable or non-threatening. It was in this context, that the employer was entitled to ask the applicant to show cause.
  1. [205]
    While the applicant complained that the employer acted belatedly and well after the 27 October 2017 incident, that the employer acted despite Mr Evans not making a complaint and declining to make a complaint, and that the employer elected to add other allegations in the show cause notice, these considerations do not alter the fundamental finding that once it became aware of the conduct, the employer was entitled to address the behavior and to take corrective action.
  1. [206]
    The claim that management's decision to commence an investigation into the applicant's conduct was at least in part motivated by a desire to punish the applicant for his involvement in trade union activity is a more complex issue for determination.
  1. [207]
    Firstly, there was little forensic evidence to establish what was the activity that caused the employer to discriminate. The applicant made a number of general observations about what it was that would have caused the employer to react vindictively, but it remains unclear to me why the employer would have been particularly concerned by the stated activities.
  1. [208]
    During his evidence, the applicant said that his position of union delegate involved him standing up for workers' rights, trying to ensure compliance with the enterprise agreement, advising workers about entitlements under the enterprise agreement, and raising an issue about voluntary work over the Christmas period.  He said that "he stood up for his rights" and described himself as being outspoken. He also said that he was very active during the enterprise agreement negotiations which took place during the last quarter of 2016.
  1. [209]
    If I were to accept that there was in fact trade union activity which the employer resented or which caused some annoyance, consideration turns to the second issue to be resolved which is whether the employer instituted the investigation because of the applicant's union activities.
  1. [210]
    The applicant relies in part on inferences that he says should be drawn from the comments allegedly made by Mr Mitchell, Mr Magill and Mr Abdul. In this regard a number of considerations are relevant.
  1. [211]
    Firstly, while the applicant submitted that it should be inferred that statements to the effect that management wanted the applicant out of the business meant that they wanted him gone because of his trade union activity, the facts to support such an inference were sparse and, on the facts, another inference was available. In this regard, it was open to conclude that management wanted the applicant gone because he had already been given a final warning in May 2016, because he had a poor attendance record, because he had failed to comply with safety standards in the warehouse, and because of his conduct in the incident involving Mr Evans. 
  1. [212]
    Secondly, Mr Evans did not allege that either Mr Mitchell, Mr Macgill or Mr Abdul wanted the applicant gone because of his union activities. In the 1 March 2017 statement, Mr Evans said that Mr Mitchell told him, in effect, that he was acting against the applicant because of the applicant's behavior on 27 October 2017, because of the applicant's poor attendance record, and because the applicant was letting the team down. While Mr Evans included the words "pretty much a trouble maker" in the statement, it is not clear to me that this is what Mr Mitchell said, or whether it represented Mr Evans interpretation on what was said. Some clarification was provided during Mr Evans' evidence in the proceedings (T1-111):

What – why did he ask you to write a statement then?Basically, they were – they’d had enough of him.  He – basically, he’d called in sick that day, or something, and something about taking his cat to the vet.  And, yeah, he’d – just causing trouble for, you know, everyone:  not being there, letting the team down, and all those sorts of things, so   

… The – it was made out that Mr Rivers was a troublemaker.  Was anything else said about that?It was just that he was, you know, letting the team down, and, you know, having a lot of time off.  And the day that I was called in, he’d called in sick, and, yeah.  He’d just had enough of it.  He had to go.

  1. [213]
    On Mr Evans' evidence, the only connection between the union and the actions of management was that the applicant was trying to persuade, encourage or force Mr Evans to join the union.
  1. [214]
    Thirdly, I am reluctant to assign significant weight to Mr Evans' 1 March 2017 statement because of Mr Evans' declaration that he wrote the statement for the applicant to use against Mr Mitchell, Mr Magill and Mr Abdul. Given Mr Evans' own disaffection for his employer at the time, there is a reasonable basis to doubt the reliability of the allegations included in the statement.
  2. [215]
    I am not satisfied on the balance of probabilities that the decision by Mr Mitchell to commence a disciplinary process against the applicant was a decision taken for a reason that includes or relates to the applicant's status as a union delegate or activities associated therewith. I accept that the applicant's conduct with Mr Evans and his attendance record warranted investigation and left the applicant liable to disciplinary action. On balance, the incident with Mr Evans was the catalyst for the management action while the attendance issue was introduced as a matter of convenience. It was something that had to be addressed and it was timely to raise it with the other concern.

4 January 2017 allegations

  1. [216]
    The meeting on 4 January 2017 was convened for the purpose of informing the applicant that an investigation would be held into the allegations made against him. As part of the investigation the applicant was asked to attend an interview the following day. However the applicant did not return to work after 4 January 2017 and the investigation to be undertaken by the employer, was never undertaken. The first statement made by the applicant in response to the allegations was made on 10 May 2017 when Fair Work Claims wrote to Mr Mitchell (Exhibit 9) and said that the applicant denied the allegations made against him.
  1. [217]
    It was Mr Magill's evidence that he had arranged a meeting with the applicant for the afternoon of 4 January 2017 for the purpose of informing the applicant that an investigation would be initiated into alleged misconduct related to the Matthew Evans incident and to the abuse of sick leave. A letter outlining the allegations which had been prepared by the human resources department was given to the applicant in the meeting (Exhibit 21).
  1. [218]
    An email written by Mr Magill after the meeting noted that the applicant came to see him after the meeting finished and told him that he was leaving work to go the doctors. Mr Magill said that the applicant was "visibly upset and crying" and that he had told Mr Magill that he was "sick of being victimised and bullied".
  1. [219]
    Mr Abdul said that he attended the 4 January 2017 meeting "purely as support".  He said that after the meeting the applicant indicated he wanted to talk to the NUW union representative who had participated in the meeting via the telephone. It was Mr Abdul's evidence that after the applicant had spoken to the NUW representative, he came back inside and said that he would not be at the meeting that had been scheduled for the following day and that he would be represented, in his absence, by the NUW. As I understood the evidence, the meeting the following day was to be part of the investigation.
  1. [220]
    Mr Mitchell accepted that other concerns were held about the behavior or conduct of the applicant and that he had asked his purchasing manager to write a statement about an interaction that he had with the applicant. The issue had been addressed in an email written by Mr Mitchell to Mr Magill on 4 January 2017.
  1. [221]
    The applicant relied on this email (Exhibit 40) to demonstrate that the employer was mobilising a case against the applicant and that it was occurring in an unnatural manner. That is, rather than the employer responding to complaints about the applicant, the employer was initiating activities intended to build or develop a case against the applicant. In the email, Mr Mitchell had asked Mr Magill to get Cameron Fisher, the purchasing manager, to make a statement:

Mate

Get Cam to also write a statement on all the comments Jay has made toward the company. Is (sic), he hates this place, and will be handing out resumes everywhere etc etc. 

Also, statements from anyone willing to state any inappropriate comments towards staff, the company etc.

  1. [222]
    In his evidence, Mr Mitchell said that Mr Fisher informed him of the comments about a week before the Evans incident. Mr Mitchell's explanation about the matter is set out below (T3-98):

So Cameron Fisher was – there’s a group of smokers at work and they all – all meet out the front.  And Mr Fisher approached me, it would have been only at least a week before this happened, and said, “Jay’s just told me that, you know, he hates the place.  He’s – he’s handing out resumes all over the place.  He’s – he’s making it difficult for everybody.”   That’s the reason he came forward.  After seeing this email, I did reply to Brendan, and while that was still in my – my memory, I’ve asked him to – to get Cameron to write the statement of the – of the exact conversation.

  1. [223]
    The effect of the applicant's submission was that the employer's true intention was disclosed by its actions in making something of an incident that never warranted attention at the time, pressurising Mr Evans into making a complaint when he did not believe a complaint needed to be made, and stimulating or fabricating evidence against the applicant by directing Mr Fisher to write a statement about exchanges that otherwise had not attracted any interest.
  1. [224]
    In submissions, the applicant questioned the motivation of the employer in taking action against the applicant on two grounds. Firstly, the applicant said that it was clear that Mr Evans did not want to make a complaint and had to be encouraged, cajoled or forced in to making a statement. The applicant considered that the matter had resolved itself and that Mr Evans had no interest in pursuing it. Secondly, the applicant questioned the delay in addressing the incident. While the incident occurred on 27 October 2016, the employer did not take any action in relation to the matter until 2 December 2016. These considerations led the applicant to submit that the timing of the employer's investigation was correctly to be characterised as an act of reprisal directly stemming from the applicant's involvement in trade union activity. The applicant submitted:
  1. No informative response was provided by Mr Mitchell, or any of the witnesses for the Respondent as to the delay between the incident on 27 October 2016, and action being taken on 12 December 2016. Further, no explanation was proffered as to why a delay between the first instance of speaking with Mr Evans about the incident on 12 December and action then being further taken in January 2017 to again obtain a written statement from Mr Evans regarding the 27 October 2016 incident.
  1. The Applicant submits that the delay of the employer in raising these complaints was part of an overall course of conduct to seek to push the Applicant from the business.
  1. [225]
    The respondent maintained that there was no significant delay in responding to the incident. The submission was that the employer was not notified of the incident until 2 December 2016 and that upon receipt of that information, Mr Abdul immediately spoke to Mr Evans and asked him to speak to Mr Mitchell. While Mr Evans provided an oral statement he did not provide a written statement, but was asked to do so. The progression of the matter after this was only delayed by Mr Mitchell's absence from the workplace on bereavement leave.
  2. [226]
    The respondent also pointed out that it was obliged under health and safety law to discharge a duty of care to its workers and to investigate an incident in the workplace which had caused significant distress to Mr Evans.

Complaint of bullying

  1. [227]
    The submission was that, during the course of his employment, the applicant had made multiple complaints that he had been bullied in the workplace. While the submission referred to multiple complaints, only two were identified and relied on in the proceedings. The first complaint was made in 2015 before the applicant became a union delegate and a second complaint was made in 2017, well after he had become a delegate. The complaint made in 2015 involved a formal complaint against a co-worker, Mr Fellows. An investigation by the employer into the complaint did not substantiate the allegations made by the applicant.
  1. [228]
    The proposition that a second complaint had been made in January 2017 is questionable. In advancing this proposition, the applicant relied on a record of a meeting held on 4 January 2017 in which the applicant had been advised that an investigation would be commenced into allegations made against him, including an allegation of bullying and an allegation of sick leave abuse. The meeting record (Exhibit 22) notes that the applicant said during the meeting that he was "sick of being victimised and bullied by the company".
  1. [229]
    On the surface, this observation could not be construed as a complaint of bullying and should be more correctly seen as a description of the applicant's reaction to the employer's intention to commence an investigation. The applicant was saying that he perceived that the bringing of the allegations and the commencement of an investigation, amounted to bullying and harassment. Unless the allegations could be shown to be completely contrived and without any foundation, it would be difficult to sustain a submission that the employer's activities amounted to bullying and victimisation.
  1. [230]
    The applicant however did not develop this line of attack. Rather, the thrust of its submission was that the applicant's response in the meeting should have been construed as a complaint of bullying which should then have been subject to some form of investigation by the employer. The failure to investigate was then characterised as discriminatory on the basis that when the applicant made a complaint before he became a union delegate, his complaint was investigated, but when such a "complaint" was made after the applicant became a union delegate, the employer elected not to respond or investigate.
  1. [231]
    In a diary note prepared in relation to the 4 January 2017 meeting, Mr Abdul noted that during the meeting the applicant had "ranted that he is the one being victimize (sic) and bullied by Bidgood". The diary note also disclosed that at the end of the meeting the applicant said that he would most likely not return to work for the rest of the day and that he would be seeing his doctor.
  1. [232]
    The effect of the respondent's submission was that this ground for discrimination should be dismissed on the basis that the ground did not form part of the applicant's amended statement of facts and contentions and that ground involved a new allegation that had not been previously raised. The respondent opposed the applicant being granted leave to amend his claim to include new allegations. Alternatively, the respondent argued that the inclusion in a file note of a comment made by the applicant in the 4 January 2017 meeting could not be characterised as the applicant making a formal complaint. Also, not only did the applicant not make any form of formal complaint, he did not return to the workplace after 4 January 2017, making the investigation of anything the applicant said very problematic.
  1. [233]
    The applicant's reasoning is deficient and lacks merit. I do not accept that the response of the applicant in the meeting amounted to a complaint of bullying as the term "complaint" would be normally understood. The response would be more accurately characterised as a reaction to the complaint of bullying brought against him. Secondly, while the applicant was cynical of the motivation for, and the need for, any investigation, the employer was entitled to raise the issues with the applicant and inform him of how they intended to deal with the matters.  This approach in itself does not amount to bullying. It is also relevant as stated by Mr Abdul, that if a complaint had been made, there was no capacity to follow up in respect to the matter because the applicant never returned to his employment after he left the 4 January 2017 meeting. Finally, the proposition that the applicant's complaint against Mr Fellows in 2015 served as a valid comparator is not accepted.

Conclusions on trade union activity

  1. [234]
    In written submissions the applicant advanced the case that warning letters dated 6 April 2016 and 13 May 2016 marked the commencement a "process designed to create a façade of legitimacy to what would ultimately be the Applicant's exit from the business". The submission was that the warnings were issued shortly after the applicant became a union delegate and engaged in trade union activity.
  1. [235]
    On the applicant's chronology, the next instance of adverse conduct by the employer took place in early December 2016 when the employer elected to take action in response to the Evans incident. Significantly, for the applicant, this action occurred at a time when the applicant was becoming increasingly involved in enterprise bargaining negotiations. The third incident occurred in mid-December 2016 when Mr Abdul directed the applicant to wear the company hi-viz shirt in lieu of his NUW shirt.
  1. [236]
    A number of general observations can be made in relation to the applicant's claim that the respondents were motivated by his trade union activities to treat him less favourably or to victimise him. Firstly, while the applicant conveniently attributed all less favourable treatment to the applicant's trade union activity, little evidence was adduced that could substantiate a finding that the respondents were in any way concerned about how the applicant exercised his responsibilities as a trade union delegate.
  1. [237]
    Secondly, the employment conditions of front line workers was regulated with an enterprise agreement entered into between the first respondent and the NUW. Thirdly, there was no indication that membership of a union was actively discouraged by the first respondent or that union membership, while not compulsory, was anything out of the ordinary. Fourthly, the applicant was not the only union delegate but was one of four NUW delegates in the workplace. It would be fair to conclude that union involvement in the warehousing operations of the first respondent would be a routine or common phenomenon.
  1. [238]
    Finally, in every instance where the applicant claimed that he had been less favourably treated, he made no concession about his own conduct, but claimed that the first respondent and its supervisors and managers were determined to victimise him because of the way he discharged his role as a union delegate. The applicant accepted that while this was his strong and continuing belief, no one even chastised him in relation to the discharge of union activities (T1-42):

So, from your perspective, it had to be – you’re looking for a reason, are you, for why these things happened to you and every single one of the reasons you’ve given here today is because you were the union delegate?  Every time?  Is that right?Yes.

But you didn’t give one single instance where you fronted up to Mr Hawker or to anybody else and said, “I’m the union delegate.  I’m going to do this thing”, and they said, “You know, get out of our way you trouble maker, don’t you come with your union stuff with us”, or anything of that kind?  Is that right?  Not one single instance?No.  Never said anything to me personally.  No.

  1. [239]
    Consistent with this, some of the allegations made by the applicant were opaque in their expression and elucidation and lacked any compelling edge.  For inferences to be drawn, a more robust factual foundation needed to be laid.
  1. [240]
    In submissions, the applicant associated the commencement of a disciplinary process with the applicant's involvement in enterprise agreement negotiations, but other than the existence of a temporal connection, no evidence was adduced nor submissions made about the actual nature or extent of the applicant's role or participation in the enterprise bargaining activity, nor was any attempt made to demonstrate that the employer was upset, aggrieved or annoyed by the applicant's behavior during the enterprise bargaining negotiations. It was more a matter of convenience for the applicant to say that, because of the temporal association, any disciplinary action forecast by the first respondent had to be influenced or driven by the applicant's involvement in enterprise bargaining.

Victimisation

  1. [241]
    The applicant submitted that the decision of the respondents to terminate the employment of the applicant amounted to an act of victimisation pursuant to s 130 of the Act. The applicant alleged a contravention of s 131(1)(a)(ii) of the Act.
  1. [242]
    The applicant submitted that in terminating his employment, the respondents were motivated by an apprehension that the applicant had alleged a contravention of the Act in the correspondence dated 10 May 2017. In terminating his employment the respondents were responding to the allegations of discrimination raised by the applicant and were motivated to end his employment to avoid having to deal with the allegations of discrimination.
  1. [243]
    The respondents characterised the applicant's correspondence of 10 May 2017 as "wholly self serving" and submitted that it could not be relied on to prove an allegation of victimisation.
  1. [244]
    In my view the applicant has failed to make out a case of victimisation. The employer had set in train a process well before the 10 May 2017 correspondence which had implications for the applicant's ongoing employment. It was clear that the respondent was responding to a state of affairs in which the applicant had been off work for a considerable period of time and where his general practitioner had advised that he had no capacity for work of any type. It was these circumstances which motivated the employer to consider whether the applicant was likely to return to work and which ultimately led to the applicant's termination. There is no basis to conclude that the prospect that the applicant might exercise his right to make a complaint of discrimination or suggest a contravention of the Act was a factor relevant to the employer's decision to terminate the employment.  

Indirect Discrimination

  1. [245]
    The applicant submitted that the employer had indirectly discriminated against him by imposing a term to the effect that he could only return to work at his substantive work place on the Sunshine Coast.
  1. [246]
    The applicant submitted that the evidence adduced from the respondent's witnesses indicated that a term imposed to the effect that the applicant must return to work at the Sunshine Coast site of the employer. Given that there was no dispute that the applicant's impairment precluded his return to the Sunshine Coast site and that it was self-evident that others without the impairment could, indirect discrimination had occurred. Beyond this, it was argued that unreasonableness of the term was demonstrated by evidence that mobility between the first respondent's sites was the norm and that was open on the evidence to conclude that the applicant could have been returned to work at a location other than the Sunshine Coast.
  1. [247]
    The difficulty for the applicant is that claim of indirect discrimination was not pressed until after the respective cases were closed and when written submissions were filed. The position is that the applicant had never, prior to submissions, made a claim of indirect discrimination, included any such allegation in his statement of facts and contentions nor advanced such claim during his evidence in the proceedings. Neither had the applicant provided any evidence to the effect that a return to work in a particular position in a specified location other than the Sunshine Coast was something that he was willing to accommodate. Such a proposition had not been included in any of the certificates issued by Dr Greenwood nor had any such proposal been included in the correspondence written by Fair Work Claims on 10 May 2017. These circumstances led the respondent to submit that:

No such case was contended for and no evidence was adduced on the part of the Complainant to the effect that any such hypothetical appointment to another unspecified and hypothetical workplace was or could be considered by the Commission to be possible, much less reasonable.

  1. [248]
    It was submitted that no evidence was adduced identifying a different position and a different location that may have been suitable to accommodate the applicant's return to work and in respect of which the applicant may have been able to perform with his impairment. There was no evidence that the applicant had ever proposed such a resolution, nor was there any evidence that had an alternative location been proposed that such a proposal would have been accepted by the applicant.
  1. [249]
    The respondents said that they had never responded to, nor were required to respond to, any proposition that there had been a section 11 contravention of the Act. The respondents were never aware that they had to respond to a complaint of indirect discrimination and maintained that it would be procedurally unfair for any such claim to be entertained by the Commission.
  1. [250]
    From the respondents' perspective, in the absence of any application to amend the claim, the applicant was not entitled to broaden the scope of the litigation after the litigation had concluded. It would be a denial of procedural fairness to allow such a state of affairs. Notwithstanding this primary objection, the respondent submitted that the applicant's claim could not be sustained by reference to a term imposed by Dr Edwards. The submissions was that Dr Edwards was not the employer and that he did not or could not impose the term as alleged by the applicant.
  1. [251]
    In support of a contention that the applicant's case had been circumscribed by his statement of facts and contentions in particular, the respondents relied on the decision of Martin P in Yousif v Workers' Compensation Regulator:[3]

[15]    It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.

Findings

  1. [252]
    The applicant was lawfully discriminated against in the termination of his employment because of his impairment. The respondents have raised and substantiated their reliance on the s 25 exemption.
  1. [253]
    The evidence supports a finding that the provision of special services and facilities would not have enabled a return to work by the applicant. Not only did the medical evidence conclude that the applicant could not perform work, it also found that the applicant could not return to his place of employment. A return to work was not viable, and unjustifiable hardship would result if such were required.
  1. [254]
    The applicant was not treated less favourably because of his trade union activity. The applicant was not dismissed because of his trade union activity. He was not asked to complete a medical assessment because of his trade union activity.
  1. [255]
    The applicant was not dismissed because of allegations that he made in the 10 May 2017 Fair Work Claims correspondence. There was no element of victimisation associated with the termination of the applicant's employment.
  1. [256]
    The applicant's claim of indirect discrimination is rejected. The respondents would be severely prejudiced and denied procedural fairness if this claim were entertained.
  1. [257]
    The application is dismissed.

Footnotes

[1] [2012] QCATA 31

[2] [2015] QCATA 145

[3] [2017] ICQ 004

Close

Editorial Notes

  • Published Case Name:

    Rivers, Jay v Burleigh Marr Distributions Pty Ltd and Ors

  • Shortened Case Name:

    Rivers, Jay v Burleigh Marr Distributions Pty Ltd and Ors

  • MNC:

    [2019] QIRC 70

  • Court:

    QIRC

  • Judge(s):

    Member Black IC

  • Date:

    17 May 2019

Appeal Status

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